(2) Sholom Rubashkin; Judicial Disqualification

In the United States, the term "recusal" is used most often with respect to court proceedings. Two sections of Title 28 of the United States Code (the Judicial Code) provide standards for judicial disqualification or recusal. Section 455, captioned "Disqualification of justice, judge, or magistrate judge," provides that a federal judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The same section also provides that a judge is disqualified "where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding"; when the judge has previously served as a lawyer or witness concerning the same case or has expressed an opinion concerning its outcome; or when the judge or a member of his or her immediate family has a financial interest in the outcome of the proceeding.

28 U.S.C. sec. 144, captioned "Bias or prejudice of judge," provides that under circumstances, when a party to a case in a United States District Court files a "timely and sufficient Motion that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of an adverse party," the case shall be transferred to another judge.

The general rule is that to warrant recusal, a judge's expression of an opinion about the merits of a case or familiarity with the facts or the parties must have originated in a source outside the case itself. This is referred to in the United States as the "extra-judicial source rule" and was recognized as a general presumption, although not an invariable one, in the 1994 U.S. Supreme Court decision in Liteky v. United States.

Often justices or judges will recuse themselves sua sponte (on their own motion), recognizing that facts leading to their disqualification are present. However, where such facts exist, a party to the case may suggest recusal. Generally, each judge is the arbiter of a motion for the judge's recusal, which is addressed to the judge's conscience and discretion. However, where lower courts are concerned, an erroneous refusal to recuse in a clear case can be reviewed on appeal or, under extreme circumstances, by a petition for a writ of prohibition.

In the Supreme Court of the United States, the Justices typically voluntarily recuse themselves from participating in cases in which they have a financial interest. For example, Justice Sandra Day O'Connor generally did not participate in cases involving telecommunications firms because she owned stock in such firms, while Justice Stephen Breyer has disqualified himself in some cases involving insurance companies because of his participation in a Lloyd's of London syndicate. Justices also have declined to participate in cases in which close relatives, such as their children, are lawyers for one of the parties. On occasion, recusal takes place under more unusual circumstances; for example, in two cases, Chief Justice William H. Rehnquist stepped down from the bench when cases were argued by Arizona attorney James Brosnahan, who had testified against Rehnquist at his confirmation hearing in 1986. Whatever the reason for recusal, the United States Reports will record that the named Justice "took no part in the consideration or decision of this case."

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