When Should a Judge Recuse?

There was recently a story in The New York Times about recusal:

An Alabama judge who once complained on Facebook of being racially profiled by the police refused on Thursday to recuse himself in a case involving a white police officer’s fatal shooting of a black man.Defense lawyers had argued that two posts by the judge, Greg Griffin of the Montgomery County Circuit Court, created the appearance of a conflict, one of the lawyers, Roianne Conner, said in a phone interview. But Judge Griffin denied the defense’s motion during a hearing on Thursday morning, Ms. Conner said.

“He took it very personally,” she said. “He told me he could take off his black robe, but he couldn’t take off his black skin.”

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Recusal motions can be quite emotional for a judge. We all like to think of us as being fair, and recusal conjures up images of judicial inferiority.

Years ago there was a judge from northern Minnesota who explained his view of recusal. The judge had grown up in a reasonably small town and, except for attending law school, spent his whole life there. “I know most everyone.” he said, and he therefore believed that recusal — because he knew litigants — was impractical. “The only time I recused myself was when there was a strike at the plant. Many of the strikers were arrested when they picketed the plant. I simply could not win.”

Seems reasonable? What about taking positions before you became a judge? Surely no one would expect Thurgood Marshal to recuse in cases involving racial discrimination.

The Washington Post recently reported that: “Two years after a Kentucky county clerk stirred national attention for refusing to issue marriage licenses to same-sex couples, a family court judge in the same state announced he will no longer hear adoption cases involving gay parents, calling his stance on the issue “a matter of conscience.”

Judge W. Mitchell Nance, who sits in Barren and Metcalfe counties in Kentucky, issued an order recently in which he wrote that he believes allowing a “practicing homosexual” to adopt would “under no circumstance” promote the best interest of the child. The judge disqualified himself from any adoption cases involving gay couples, citing judicial ethics codes requiring that judges recuse themselves whenever they have a “personal bias or prejudice” concerning a case. Nance’s “conscientious objection” to the concept of gay parents adopting children constitutes such a bias, he argued. Judge Nance’s request to amend the Kentucky Code of Judicial Conduct to allow his recusal was denied by the Chief Justice  within the last couple of days.


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