Charles Gardner Geyh, Associate Dean of Research, John F. Kimberling Professor of
Law, Indiana University Maurer School of Law, a Federal Judicial Center Publication;
"For centuries, impartiality has been a defining feature of the Anglo-American judge’s role in the
administration of justice.
The reason is clear: in a constitutional order grounded in the rule of law, it is imperative that judges make decisions according to law, unclouded by personal bias or conflicts of interest.
Accordingly, upon ascending the bench, every federal judge takes an oath to
“faithfully and impartially discharge and perform all the duties” of judicial office; and the Due
Process Clause of the Fourteenth Amendment to the United States Constitution has been
construed to guarantee litigants the right to a “neutral and detached,” or impartial, judge.
Moreover, in a democratic republic in which the legitimacy of government depends on the
consent and approval of the governed, public confidence in the administration of justice is
It is not enough that judges be impartial; the public must perceive them to be so.
The Code of Conduct for United States Judges therefore admonishes judges to “act at all
times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”
and to “avoid impropriety and the appearance of impropriety in all activities"
"When the impartiality of a judge is in doubt, the appropriate remedy is to disqualify that judge
from hearing further proceedings in the matter.
In Caperton v. A.T. Massey Coal Co., a case concerning disqualification of a state supreme court justice, the U.S. Supreme Court reaffirmed that litigants have a due process right to an impartial judge, and that under circumstances in which judicial bias was probable, due process required disqualification. The Court noted, however, that disqualification rules may be and often are more rigorous than the Due Process Clause requires.
So it is with disqualification requirements for federal judges, which require disqualification when a judge’s impartiality “might reasonably be questioned."
Disqualification Under 28 U.S.C. § 455
1. The text of § 455 The primary source of disqualification law in the federal judicial system is 28
U.S.C. § 455. It provides, in its entirety, as follows:
§ 455. Disqualification of justice, judge or magistrate judge
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any
proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or
personal knowledge of disputed evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter in
controversy, or a lawyer with whom he previously practiced law served
during such association as a lawyer concerning the matter, or the judge or
such lawyer has been a material witness concerning it;
(3) Where he has served in governmental employment and in such
capacity participated as counsel, adviser or material witness concerning
the proceeding or expressed an opinion concerning the merits of the particular case in
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his
household, has a financial interest in the subject matter in controversy or in a party to the
proceeding, or any other interest that could be substantially affected by the outcome of the
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the
spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or trustee
of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be substantially affected by the outcome
of the proceeding;
(iv) Is to the judge’s knowledge likely to be a material witness in
(c) A judge should inform himself about his personal and fiduciary financial interests, and make a
reasonable effort to inform himself about the
personal financial interests of his spouse and minor children residing in
his household. 10 Judicial Disqualification: An Analysis of Federal Law
(d) For the purposes of this section the following words or phrases
shall have the meaning indicated:
(1) “proceeding” includes pretrial, trial, appellate review, or other
stages of litigation;
(2) the degree of relationship is calculated according to the civil law
(3) “fiduciary” includes such relationships as executor, administrator, trustee, and guardian;
(4) “financial interest” means ownership of a legal or equitable interest, however small, or a
relationship as director, adviser, or other active participant in the affairs of a party, except that:
(i) Ownership in a mutual or common investment fund that
holds securities is not a “financial interest” in such securities unless the
judge participates in the management of the fund;
(ii) An office in an educational, religious, charitable, fraternal, or civic organization is not a
“financial interest” in securities held by the organization;
(iii) The proprietary interest of a policyholder in a mutual insurance company, of a depositor in a
mutual savings association, or a similar proprietary interest, is a “financial interest” in the
organization only if the outcome of the proceeding could substantially affect the value of the
On the other hand, by onceptualizing them separately, § 455 can require disqualification under specific circumstances enumerated in § (b) that might not reasonably be characterized as calling a judge’s impartiality into question under § (a). For example, § (b)(4) requires judges to disqualify themselves for financial interest
(a) analysis with respect to that specific situation. For example, §455(b)(5) requires disqualification when one of the parties is within the third degree of relationship to the judge. Consequently, a fourth-degree relationship to a party does not by itself create an appearance of partiality requiring disqualification under § 455(a)— although disqualification under § 455(a) might still be appropriate if, for example, the judge’s
Rather, the question is whether a judge’s impartiality might be questioned from the perspective of a reasonable person,and every circuit has adopted some version of the “reasonable person” standard to answer this question.