Can a Judge Be Removed from Your Case? Recusal and Disqualification

A litigant who believes the judge is against him usually wants to know one thing: is there any way to get a different judge? The answer is yes, in defined circumstances. Judges can be required to step aside, and in some situations the Constitution itself requires it. But the grounds are narrower than many litigants hope, and they do not include the most common reason people want a new judge, which is that the judge has ruled against them.

The vocabulary varies. "Recusal" and "disqualification" are often used interchangeably; some writers reserve "recusal" for a judge's own decision to step aside and "disqualification" for removal required by law. What matters is the source of the rule: federal statute, state law or the Due Process Clause.

The federal statutes

For federal judges, the principal statute is 28 U.S.C. §455. Its first subsection is broad: "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The standard is objective. It asks whether impartiality might reasonably be questioned, not whether the judge is actually biased.

Subsection (b) then lists specific circumstances requiring disqualification, including where the judge:

has "a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts";

served as a lawyer in the matter, or practiced with a lawyer who did, or was a material witness;

participated in the matter while in government employment, or expressed an opinion on its merits;

knows that he, his spouse or minor child has "a financial interest in the subject matter in controversy or in a party to the proceeding," or any other interest that could be substantially affected by the outcome;

or is closely related to a party, a lawyer in the case, a person with an interest that could be substantially affected, or a likely material witness.

The statute also limits waiver. Parties may not waive the specific grounds in subsection (b); a ground arising only under the general standard of subsection (a) may be waived after full disclosure on the record (§455(e)).

A second statute, 28 U.S.C. §144, applies in federal district courts. When a party files "a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned." The affidavit must "state the facts and the reasons for the belief," a party may file only one, and it must be accompanied by a certificate of counsel stating that it is made in good faith. The words "timely and sufficient" are where most such affidavits fail: courts examine whether the facts alleged, if true, would show the kind of bias the statute covers.

Rulings are not bias

The Supreme Court addressed what counts as disqualifying bias in Liteky v. United States, 510 U.S. 540 (1994). Writing for the Court, Justice Scalia stated that "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Rulings, standing alone, "cannot possibly show reliance upon an extrajudicial source," and "almost invariably, they are proper grounds for appeal, not for recusal."

The Court went further. Opinions a judge forms on the basis of what happens in the proceedings "do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." Even remarks "critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge."

The reason is structural. A judge's job is to form views about the case before him and to rule on them. If adverse rulings or impatience were grounds for removal, any party could remove any judge who decided against him. The remedy for a wrong ruling is appeal.

When the Constitution requires recusal

Separate from statutes, the Due Process Clause sets a constitutional floor. The leading early case is Tumey v. Ohio, 273 U.S. 510 (1927). An Ohio village mayor tried liquor-law cases and was paid costs only when he convicted. The Court held that it violates due process "to subject his liberty or property to the judgment of a court the judge of which has a direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case," and articulated a test still quoted today: "Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law."

In Ward v. Village of Monroeville, 409 U.S. 57 (1972), the Court extended Tumey to a mayor who did not personally profit from convictions but whose village relied on fines from his court for a substantial part of its revenue. The "possible temptation" could exist, the Court held, when the mayor's "executive responsibilities for village finances may make him partisan to maintain the high level of contribution from the mayor's court."

The most significant modern case is Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009). After a West Virginia jury returned a $50 million verdict against Massey, its chief executive spent about $3 million supporting a candidate for the state's highest court; the Court noted this was more than the total spent by all the candidate's other supporters and three times the amount spent by the candidate's own committee. The candidate won, declined to recuse, and joined the majority reversing the verdict. The Supreme Court held, 5–4, that due process required recusal. It stressed that "not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge's recusal, but this is an exceptional case," and found "a serious risk of actual bias — based on objective and reasonable perceptions" where a person with a stake in a pending case had "a significant and disproportionate influence in placing the judge on the case." Chief Justice Roberts, joined by Justices Scalia, Thomas and Alito, dissented, warning that the standard would invite a flood of recusal motions.

Who decides, and other rules

In the federal system, a judge ordinarily decides a motion to recuse himself in the first instance under §455, subject to review on appeal, while §144 requires reassignment once a sufficient affidavit is filed. That arrangement is frequently criticized, and some states assign recusal motions to a different judge. Many states also have their own statutes and codes of judicial conduct, and some allow a party one peremptory challenge to a judge without stating any cause. The details vary widely and must be checked jurisdiction by jurisdiction.

What the record supports

Recusal is not merely a matter of a judge's discretion: federal law requires it when impartiality might reasonably be questioned and in a list of specific circumstances, and the Constitution requires it when a judge has a direct, personal, substantial interest in the outcome or the risk of bias is otherwise intolerably high. But alleging bias does not remove a judge. The recognized grounds focus on interests, relationships, prior involvement and bias from sources outside the case. Adverse rulings and courtroom friction, without more, are matters for appeal.