As the spotlight on the Supreme Court shines brighter, the public has become increasingly aware of judicial misconduct and ethical issues. This increased awareness has also exposed the judiciary’s less-than-stellar record on handling such issues. Of these ethical issues, recusal decisions are a prominent cause for concern—especially in today’s hyper-politicized world.
When or whether to recuse is a sensitive and important question most judges are bound to face. Although some statutory guidance exists, that guidance is far from a model of clarity. Even where statutory guidance is facially clear, recusal problems still persist due to benign and technological errors, or—in some cases—a fundamental misunderstanding of what the statutes require.
Additionally, the rise of social media only complicates the vague statutory framework. And with more recent outspoken judges on the federal bench, new recusal questions emerge and unique recusal motions are sure to be filed. Recusal is not limited solely to judges but also affects judicial law clerks. That is, the actions of judicial law clerks affect the judges they clerk for. But guidance for judicial law clerks is varied and thin, which creates additional problems.
Moreover, recusal has become increasingly weaponized and used for strategic advantage by all three branches of government. Each branch has ways to influence or dictate recusal decisions, all of which threaten the sanctity of the judiciary.
What is a judge to do? This Article explores and highlights potential recusal-worthy issues for both judges and judicial law clerks. Further, it details how recusal has become weaponized and explains the dangers in permitting the proliferation of recusal weaponization. Finally, this Article proffers reforms to help prevent and curb recusal abuse by (1) changing the timing of appellate review of recusal decisions; (2) modifying the appellate standard of review for recusal decisions; and (3) suggesting methods to prevent recusal manipulation in the en banc process.