Judicial ReEngineering

example, when the Solicitor General of the United States is recused from a case, the Deputy
Solicitor General will handle the matter in his or her place.
Concepts analogous to recusal also exist in the legislative branch. The rules of the United States
Senate and House of Representatives provide that a Member should not vote on a measure as to
which he or she has a personal financial interest. In such cases, the Senator or Representative
may record a vote of "present" rather than "yea" or "nay".
International Standards of Recusal
Laws or court rules provide the recusal of judges. Although the details vary, the following are
nearly universal grounds for recusal.
The judge is related to a party, attorney, or spouse of either party (usually) within three
degrees of kinship.
The judge is a party.
The judge is a material witness unless pleading purporting to make the Judge a party is
false (determined by presiding judge, but see Substitution (law)).
The judge has previously acted in the case in question as an attorney for a party, or
participated in some other capacity.
The judge prepared any legal instrument (such as a contract or will) whose validity or
construction is at issue.
Appellate judge previously handled case as a trial judge.
The judge has personal or financial interest in the outcome. This particular ground varies
by jurisdiction. Some require recusal if there is any interest at all in the outcome, while
others only require recusal if there is interest beyond a certain value.
The judge determines he or she cannot act impartially.
Consequences for Non-Recusal
A judge who has grounds to recuse himself is expected to do so. If a judge does not know that
grounds exist to recuse themselves (but does) the error is harmless. If a judge does not recuse
themselves when they should have known to do so, they may be subject to sanctions, which vary
by jurisdiction. Depending on the jurisdiction, if an appellate court finds a judgment to have been
made when the judge in question should have been recused, it may set aside the judgment and
return the case for retrial.
Waiver & Substitution
The recusal rule may be avoided or ignored if all parties and the judge agree, although in practice
this rarely occurs. If recusal is avoided in this manner, a full and complete record of the facts that
qualify as grounds, above, must be made for the appellate court.
If a judge fails to recuse themselves sua sponte and a party believes the judge has a bias the party
may motion for substitution. In some jurisdictions litigants may have the right to substitute a
judge, even if no bias is demonstrated.
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