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James Boyd
IU Maurer School of Law

Last modified: Friday, December 11, 2009

Geyh: Caperton v. Massey a 'wake-up call' on judicial disqualification

Dec. 11, 2009

BLOOMINGTON, Ind. -- Judicial ethics expert Charles G. Geyh testified Thursday (Dec. 10) that the U.S. Supreme Court's recent decision in Caperton v. A.T. Massey serves as a "wake-up call" to state and federal courts to begin taking judicial disqualifications more seriously.

Geyh, the John F. Kimberling Professor of Law at the Indiana University Maurer School of Law, was invited to testify before the House Judiciary Committee's Subcommittee on Courts and Competition.

Charles Geyh

Ann Schertz

Charles Geyh

Print-Quality Photo

Geyh's testimony provided a general outlook on judicial disqualification, noting the difficulties in having sitting judges decide for themselves whether they can be impartial on the bench.

"The problem inherent in judicial disqualification is that judges who are deeply committed to the appearance and reality of impartial justice are called upon to acknowledge, in the context of specific cases, that despite their best efforts to preserve their impartiality, they are either partial or appear to be so," Geyh testified. "That is a hard thing to ask of our judges. My objective here is to propose reforms that will make that difficult task easier."

Geyh pointed to several issues that could be resolved through reform. They include:

  • Rather than having judges decide motions requesting their own disqualification, amend U.S. Code to require contested disqualification motions be heard by a different judge.
  • Eliminating or replacing Section 144 of Title 28, which forces a judge to step aside after a case party files an affidavit alleging judicial bias. Geyh testified that a possible solution might entail allowing parties to request a substitution of judges, just like an attorney's ability to strike potential jury members. Geyh noted that 19 states currently have such a procedure, which can only be invoked once, and early in the legal process.
  • Instead of requiring a judge to step down due to potential financial interest conflict, change the code to require a recusal only if the financial interest of the judge is "significant enough to call a judge's impartiality into question," Geyh said.

Geyh is the author of When Courts & Congress Collide: The Struggle for Control of America's Judicial System and is the director of the American Bar Association's Judicial Disqualification Project. He is the author of a forthcoming monograph on judicial disqualification in the federal courts and recently served as co-reporter to the ABA Joint Commission to Revise the Model Code of Judicial Conduct. He can be reached at 812-855-3210 or