Document Type

Response or Comment

Publication Date


Publication Title

Hearing before the House Committee on the Judiciary, Subcommittee on Courts and Competition Policy


Although federal judges do not run for election, over the last three decades the process of nomination and confirmation has become politicized to a disturbing degree. There is a real danger that the judges will come to be perceived not as dispassionate servants of the law but as political actors who pursue political or ideological agendas. One consequence of these developments is likely to be increased scrutiny of judges’ responses to motions to recuse. Here as in other aspects of the operations of the judiciary, “just trust us” is no longer sufficient.

Two provisions of Title 28 of the United States Code deal with conflict of interest and the disqualification or recusal of federal judges. (“Disqualification” and “recusal” are generally treated as synonymous.) Section 144 establishes procedures for assuring that no case is heard by a district judge who “has a personal bias or prejudice” against or in favor of any party. Section 455 lays down elaborate rules to govern the disqualification of judges and avoid conflicts of interest. Because § 455 is so much broader in its definition of the circumstances that require disqualification (and for other reasons), it is invoked far more often than § 144.

Overall, I believe that federal judges are quite sensitive to their ethical obligations, and that they generally recuse themselves from participation in cases when their impartiality might reasonably be questioned. But no system is perfect, and in this statement, submitted at a House Judiciary Committee hearing, I suggest two measures that can enhance transparency and help judges to avoid even the appearance of impropriety. First, judges should be encouraged to post “conflict lists,” including financial holdings, on their courts’ websites. Second, litigants should be given one opportunity to secure reassignment of a civil case to another judge. In colloquial terms, each side would have a right of “peremptory challenge.”

I do not propose that a peremptory challenge procedure be incorporated into the Judicial Code at this time. Rather, I suggest that Congress implement the idea through a pilot or demonstration program. Specifically, the legislation would authorize peremptory challenges of judges in civil cases in a small number of large and medium-sized judicial districts for a limited time. Congress would ask the Federal Judicial Center to monitor the use of the procedure in the pilot districts and to report its findings to Congress and the Judicial Conference of the United States. Based on the findings, Congress would decide whether to expand the program, modify it, or allow it to die.