Judicial Disqualification on Appeal

Adjudication by an impartial decision maker is one of the cornerstones of due process. The interest is so fundamental that constitutional due process guards against even the appearance of partiality, and federal judges are statutorily required to disqualify themselves in any proceeding in which their impartiality “might reasonably be questioned.” Courts and scholars alike have struggled with what it means to “reasonably question” a judge’s impartiality. That question has taken on greater salience in recent years, as deepening partisan divisions have increasingly led parties to express skepticism of judicial neutrality. When a party files a motion to disqualify a judge based on the appearance of partiality, that motion is commonly ruled upon by the very judge whose impartiality is being questioned.

The ability to appeal the denial of a disqualification motion plays therefore plays a key role in maintaining public confidence in the judiciary. Appellate review offers a third-party evaluation of the judge’s appearance of impartiality (often the first third-party review), and it brings in the benefit of a larger panel to evaluate the underlying ruling. In spite of the importance of appellate review, the procedures by which judicial disqualification will be reviewed are far from clear. This Article explores the procedural aspects of appellate review of judicial disqualification orders and works to reconcile the current inconsistencies in federal practice.

Ultimately, the article recommends that the federal courts standardize appellate review of disqualification orders to minimize confusion and promote confidence in an impartial judiciary.