Our Unconstitutional Recusal Procedure

In this article, I argue that the recusal procedure used in state and federal courts for nearly all of American history is unconstitutional. For centuries, recusal procedure in the United States has largely resembled that of England before American independence. To this day, in most American courtrooms, the judge hearing the case decides whether recusal is required under the applicable substantive recusal rules. If the judge determines that she can act impartially, or that her impartiality could not reasonably be questioned, the judge remains on the case. And although the judge’s decision is typically subject to appellate review — with the United States Supreme Court the one important exception — the judge’s decision not to recuse is reviewed deferentially, and is rarely reversed. That self-recusal procedure stands in stark contrast to the judiciary’s rhetoric about the importance of judicial impartiality under the Constitution’s Due Process Clause. Impartiality is the touchstone of judicial decision-making; the right to a fair trial in front of a fair, impartial tribunal is at the core of our justice system. I argue that the common-law recusal procedure allowing a judge to decide her own recusal motions is unconstitutional because it violates one of the most fundamental tenets of due process: it allows a judge to be a judge in her own cause