There may well be no other motion more likely to cause judges to quickly become defensive.  “How dare they question my fairness!”  “Never in my career has such a thing happened!”  Too often, when the judge asks a colleague, the response is reflexive:  “Hang in there.”

But, if each of us is committed to fairness – really committed – then openness and having a willingness to reflect are essential elements to being a good judge.

Ray McKoski has posted Disqualifying Judges When Their Impartiality Might Reasonably Be Questioned: Moving Beyond a Failed Standard (Arizona Law Review, Vol. 56, No. 411, 2014) on SSRN.

Here is the abstract:

All state and federal courts require the disqualification of a judge when the judge’s “impartiality might reasonably be questioned.” Created by the ABA in 1972, this disqualification standard was intended to help restore public confidence in the judiciary by instilling uniformity and predictability in the recusal process. Unfortunately, the “might reasonably be questioned” test has been an utter failure. It has not decreased the arbitrariness or increased the predictability of recusal decisions. On the contrary, the vague and unworkable standard (1) prevents a disqualification jurisprudence from developing, (2) renders it impossible for ethics advisory committees to provide meaningful advice to judges on recusal issues, and (3) provides a vehicle upon which litigants and non-litigants can shamelessly attack a judge’s impartiality on the basis of the judge’s religion, race, ethnicity, sex, or sexual orientation.