In the American judiciary system, it is imperative that judges act free of bias. Although this seems to be an easy-enough-to-understand theory, its practical application is not always so simple. As a result, there have been wide-ranging, unpredictable, and sometimes undesirable results. Others have noted the need for clearer recusal rules and guidelines. There have been various suggestions for how to improve or reform recusal rules, all of which note that there is a lack of standardized and predictable rules for when judges are required to recuse themselves. These previous suggestions have correctly identified the root of the problem and provided practical solutions to the problem of judges improperly refusing to recuse themselves, but they have also ignored a significant problem with the current landscape of recusal law: an equal need of standardized guidance for when not to recuse, an area not adequately considered to this point. This is not just a hypothetical problem. As the United States Court of Appeals for the Fifth Circuit's en banc decision in Comer v. Murphy Oil shows, a judge's decision to recuse can be just as detrimental, if not more so, than a judge's decision not to recuse.
This Article first briefly outlines the historical background of and purpose behind recusals. It then discusses the odd--but certainly potentially repeatable--procedural path of Murphy Oil, which ultimately led to the dismissal of an appellant's victory as if no appeal had ever taken place, explaining why this decision was not only unsound but also symptomatic of a much larger recusal problem. It next describes alternatives available to the Fifth Circuit, including following the decision of the Fourth Circuit in a similar case; although there were better options, the Fifth Circuit's course of action was perfectly permissible under the law. Finally, this Article explains why these conflicting decisions illustrate the need for better recusal standards, including standards not only for when judges must recuse themselves, but also for when judges must not recuse themselves.
Others have theorized that recusal statutes and procedures are systematically underused and underenforced." It is not just underuse, however, that poses a problem. Although underuse can deprive litigants of an impartial forum, overuse can be even more problematic as it can deprive litigants not just of an impartial forum, but any forum at all.
59 Loyola Law Review 947-977 (2013)
Lowe, Mason E., "Reconsidering Recusals: The Need for Requirements for When Not to Recuse" (2013). Faculty Publications. 2000.