Judge Recusal System in the U.S. and Korea - With a Discussion on How to Reduce Preferential Treatment of Former Judges -

When the existence of conflict of interest or bias will prevent the judge from rendering fair and just decision, it may become necessary for that judge to recuse himself or herself. However, if the judge refuses to recuse sua sponte or ignores the necessity of recusal, it will be important for an adversely situated party to request a recusal by filing a motion to that effect. The recusal of judges either sua sponte or by motion would be important in guaranteeing the fairness of the judicial rulings by removing the actual or appearance of bias or conflict of interest. The downside of judge recusal is that some attorneys or parties may try to abuse it as a tactical matter to delay the trial process or simply to replace the presiding judge with the one whom they prefer. Also, a judge’s recusal sua sponte should not result in a situation where a party loses a right to appeal. A practical concern hampering a party’s motion to recuse exists due to the reality that the same judge whose impartiality was challenged will continue to hear and decide the case once the motion is denied. The U.S. Congress provides the standard for judge recusals which calls for the recusal of a judge when “his impartiality might reasonably be questioned.” This objective standard requires a judge to recuse himself only if there is an appearance of bias let alone the existence of actual bias. But a problem still exists in that the presiding judge is the same judge who makes the final decision as to whether or not his interest was sufficient enough to warrant recusal. The current appeal process as to the non-recusal decision to the appellate courts would not provide an adequate remedy. It seems that there are two important and effective measures to deal with the issue associated with judge’s denial of recusal requests. First is the creation of independent board/panel which should review the facts and determine the appropriateness of the judge’s decision not to recuse. Second is the requirement that the judge who declines to recuse submit the written opinion to show the reasons not to recuse so that arbitrary and capricious decisions may be verified. In Korea, the practices have been ‘customarily’ engaged by the former judges who became lawyers by attempting to influence the courts by abusing their previous judgeship or personal relations with the presiding judge. The most effective measure against the attempts to interfere with judicial administration would be to use the judge’s recusal system in the objective and strict way as warranted. If the judge does not recuse sua sponte despite the existence of actual or apparent bias under the objective standard and the party files a motion to recuse, such motions should be heard and decided by an independent board. Also, the courts should re-assign judges when there is a conflict of interest or a possibility of the attorney’s tempering of judicial administration. And the judges whose impartiality can be reasonably questioned due to the public relationship or private connection with the lawyer in case should freely request the courts to re-assign the case.