“When you strike at a king” begins the legendary admonition by Ralph Waldo Emerson to a young Oliver Wendell Holmes, Jr.[1] The young writer had asked for a review of his essay, which challenged the philosophy of Plato. Parties in serious litigation concerned about whether the presiding judge would be an impartial arbiter face a similar peril—should they risk seeking to recuse the judge? Or in other words, if you seek to recuse the judge, you’d best win!
Successfully recusing a judge, especially when the judge has already presided over part of a case, is rare. Judges are often asked to make difficult calls. Ordinarily, making tough calls, even if made incorrectly, doesn’t justify recusal. But Texas, indeed all America, adheres to an important premise underpinning justice: the judge will not only be an impartial arbiter, but the judge will preside in such a way that the public would be confident the judge is impartial.
Texas, like many states, has a rule of procedure that guides recusal decisions.[2] That rule identifies circumstances for recusal. Among the most important, recusal is required when the judge’s “impartiality might reasonably be questioned.” That language matters. The party seeking recusal need not prove actual bias. And whether the judge believes he or she can remain impartial is not the material question. The question is whether, under the circumstances, a reasonable member of the public knowing all the relevant facts would doubt the judge’s impartiality.
Anticipating that trial judges will routinely make rulings that disappoint at least one party in litigation, Texas courts limit the type of evidence that may be relied on for recusal—losing a ruling, even an important and incorrect one, is no evidence supporting recusal. Judges are supposed to make decisions, and somebody generally loses each contested ruling. Likewise, expressions of impatience, annoyance, or frustration do not ordinarily support an order of recusal. To the extent these experiences are concerning, typically, a party is entitled to appeal the trial court’s judgment, at least to the court of appeals, and to get a full review of the trial court’s handling of the case.
But as the United States Supreme Court acknowledged in Liteky v. United States[3](a case frequently cited by Texas courts), though mere adverse rulings or instances of problematic judicial temperament will not support recusal, conduct that reveals a notably high degree of favoritism or antagonism could support the conclusion that a reasonable member of the public, knowing all the relevant facts, would doubt the judge’s impartiality.
For recusal, the focus is not on what the judge ruled, but on whether the judge demonstrated a pattern of unfairness.
To summarize, recusal may become appropriate when the accumulation of judicial conduct and rulings demonstrates excessive favoritism or antagonism, or when the judge effectively steps outside the role of neutral arbiter.
One last point. Texas’s recusal rules are designed, ultimately, to protect an institutional value larger than any particular lawsuit. An impartial tribunal is fundamental to the public’s confidence in the legal system. This explains why Rule 18b asks whether impartiality might reasonably be questioned, rather than requiring proof of actual bias.
Recusal is not a mechanism for removing a judge merely because a litigant dislikes the judge’s rulings. Judges must remain free to decide difficult and contentious cases. But judicial authority carries a corresponding obligation to act fairly. Consequently, Texas law does not require the litigant to prove what is actually in the judge’s mind. Rather, recusal is required only if the circumstances, when fully considered, would cause a reasonable and informed observer to question whether the judge remains neutral.
In the past decade, Butler Snow has successfully removed judges in cases where their impartiality was reasonably questioned. But such relief should rarely be sought and only under the most serious circumstances.
[1] Many public sources, though without precise citation, attribute this phrase to Emerson as his comment to Holmes, Jr.
[2] Texas Rule of Civil Procedure 18b.
[3] 510 U.S. 540 (1994)
