Recently, a poll question running here at the Law Journal asked whether readers thought judges should be required to disclose their reasons when they recuse themselves from a case. The result was a 50/50 split on the issue.
I had expected that our readers would overwhelmingly vote no, for two reasons.
First, requiring judges to give their reasons for recusal could result in litigants gaming the system. If a judge recuses himself, because X is a party to the case, other litigants may use creative pleading to bring X into a case for the sole purpose of forcing the judge to recuse himself, only to later dismiss X from the case if he has no real relevance to it, after the case has been switched to another judge.
The second reason is more conservative. For hundreds of years, judges have not been required to give a reason when they recuse themselves, although they may if they want to, and the total number of problems that have resulted over those centuries is exactly zero. Why 50 percent of persons taking this poll would choose to scrap a rule that has never been a problem, and switch to a rule that may or may not result in problems, I cannot imagine.
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February 10th, 2009 at 11:55 am
“Click here” polls are not statistically valid. You should not waste your time (or your readers’ time) trying to analyze them.
February 10th, 2009 at 1:51 pm
I would say the 50% for actual disclosure comes from those attorneys who have had judges dump their cases midstream for specious reasons. Former Milwaukee County Circuit Judge Robert Miech (RIP) was the champion at that. When a case became real work he would dump it on another judge and get a simple one in return. They even modified the local rules to deal with what he was doing. In the end, those 50% are tired of the phony reasons judges give or do not give for for avoiding doing their job.