On Wednesday, January 22, 2025, nonprofit organization Fix the Court announced that it has proposed several revisions to the American Bar Association’s (ABA) Model Code of Judicial Conduct, specifically focusing on the recusal process outlined in Rule 2.11. The organization submitted its recommendations to the ABA’s Standing Committee on Ethics and Professional Responsibility, aiming to enhance judicial impartiality and transparency.
The ABA’s Model Code of Judicial Conduct, which serves as a guiding framework for state judicial practices, currently stipulates specific circumstances under which judges must recuse themselves from cases. However, Fix the Court identified areas where the existing rules could be improved to better address potential conflicts of interest.
One key recommendation involves clarifying what constitutes an “economic interest” for judges and their family members. Under Rule 2.11(A)(3), judges are required to recuse themselves if they know that they or a family member has an economic interest in the case. The ABA’s 2020 commentary on this rule defines economic interest as ownership of more than a minimal legal or equitable interest, but Fix the Court advocates for a more explicit definition. They propose that any income, gifts, or reimbursements received by judges or their family members from parties involved in a case should automatically necessitate recusal. Drawing from the proposed SCERT Act of 2023, Fix the Court suggests that this requirement should extend to any financial interactions occurring within six years prior to a judge’s assignment to the case.
Another significant recommendation involves the recusal of judges when a party or an affiliate has lobbied for or against their nomination or confirmation. The current rule requires judges to recuse themselves if they learn that a party has donated to their election campaign, but it does not address lobbying actions. Fix the Court argues that lobbying efforts can create similar conflicts and recommends that judges recuse themselves if they are aware of any lobbying activities related to their nomination.
Additionally, Fix the Court calls for mandatory on-the-record explanations for judicial recusals. Currently, Rule 2.11(C) allows judges to disclose the basis for their disqualification at their discretion. The organization argues that making this disclosure mandatory would enhance transparency and allow the public to better understand potential conflicts of interest affecting judges.
Lastly, Fix the Court emphasizes the need for clear guidelines concerning recusal procedures. The Model Code lacks detailed instructions on who should review recusal motions and how decisions are made following a judge’s disqualification. The organization suggests that impartiality can be maintained by having judges from other courts or disciplinary boards review recusal motions rather than the judges themselves. They also recommend establishing mechanisms for appealing denied recusal motions and for replacing judges who are recused.
These proposed changes aim to strengthen the integrity of the judicial process by addressing gaps in the current recusal standards. Fix the Court believes that implementing these recommendations could lead to greater fairness and predictability in judicial decision-making. The organization hopes that its suggestions will be taken into consideration by the ABA as it reviews the Model Code.
