David S. Tatel, Washington Post - David S. Tatel served on the U.S. Court of Appeals for the District of Columbia Circuit from 1994 until his retirement this year. He is the author of “Vision: A Memoir of Blindness and Justice.”
Even the slightest hint of bias or partiality threatens the integrity of the judiciary and the rule of law. It isn’t enough that judges believe they can be impartial, they must also appear to be impartial.
In recent months, we have heard calls for judicial reform, with critics advocating new rules and structural changes to enhance the courts’ transparency and accountability. The president’s own proposals have been the subject of vigorous public debate. Beyond mandatory codes of conduct and term limits, one focus of critics’ concern is recusal — a judge’s withdrawal from a case to avoid a conflict of interest or the appearance of a conflict.
On this matter, judges are bound by a federal law, 28 U.S.C. Section 455(a), which states that “any Justice [or] Judge … of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The word “shall” makes recusal mandatory, while the word “might” underscores that judges must err on the side of caution in close calls. Notably, however, there is no recusal police. The statute entrusts judges to make recusal decisions of their own volition.
During my time as a judge on the nation’s second-highest court, the U.S. Court of Appeals for the District of Columbia Circuit, I adopted what I called a “five-minute rule” in deciding whether to recuse myself from a case. The rule was simple: If I had to spend more than five minutes thinking about how my participation in a case might be perceived, I chose to recuse. This meant that I recused even when I was confident that I could rule impartially because I worried that my impartiality “might” still “reasonably be questioned.”
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