Judges and conflicts

Monday, May 3, 2010

LAST YEAR, the U.S. Supreme Court ruled that a judge's refusal to step aside from cases in which he or she has a conflict of interest could raise questions about impartiality and undermine the Constitution's guarantee of due process. The case involved a state Supreme Court justice in West Virginia who declined to step down from a matter in which a big campaign contributor had an interest.

Abolishing judicial elections would go a long way toward eliminating these kinds of problems, while insulating judges from the corrosive effects of money and politics. But even appointed judges face conflicts, including those triggered by financial holdings or relationships with parties or lawyers who appear before them.

Yet challenging a judge who has a potential conflict can be virtually impossible in some jurisdictions. And even states that have a process for challenging both trial and appeals court judges most often leave the recusal decision to the judge in question, with no opportunity for impartial review.

A proposal by the American Academy of Appellate Lawyers offers improvements. The proposal calls on courts to make available with sufficient lead time the names of the judges scheduled to hear an appeal. Without such warning, lawyers and litigants might not know that a judge with a possible conflict is sitting on the case until they enter the courtroom. Raising an objection then is awkward, to say the least, and probably futile.

Judges with potential conflicts should continue to be given the first opportunity to decide whether recusal is warranted. But the proposal urges courts to review these decisions if a party to the case requests it. These reviews may be done by the chief judge or by a jurist designated as the "ethics officer." Courts should also adopt rules that require judges in most instances to explain why they have recused themselves; such explanations could help avert future conflicts.

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