Key Takeaways
- Under Caperton v. A.T. Massey Coal Co. (2009), due process requires recusal when there is an objectively serious risk of actual bias, judged from the facts rather than the judge's own view of his impartiality.
- No federal statute or code of conduct requires a judge to step aside simply because a litigant nominated or appointed her.
- Recusal in such cases turns on specific facts, such as promises or expectations about how the judge would rule in matters involving the appointing official.
If a president appoints a judge, and that president later appears before her as a litigant, must the judge step aside?
In this TalksOnLaw Brief, Joel Cohen talks with Alicia Bannon, Senior Director of the Judiciary Program at the Brennan Center for Justice, about judicial recusal and due process. Bannon explains that the question has little direct case law, then walks through the constitutional standard she would apply and how it bore on former President Donald Trump's case before Judge Aileen Cannon.
The Caperton Standard
Bannon starts with Caperton v. A.T. Massey Coal Co. West Virginia is among the many states where judges stand for election. While a multimillion-dollar verdict against Massey Coal was headed to the state supreme court, the company's chief executive, Don Blankenship, spent about $3 million supporting a candidate for that court, much of it through a political group called “And For The Sake Of The Kids.” The candidate, Brent Benjamin, won, declined to recuse, saying he could be fair, and cast the deciding vote to overturn the verdict. In 2009 the U.S. Supreme Court held that due process required him to step aside. The test, Bannon explains, is whether there is a serious risk of actual bias, judged objectively from the facts, not by the judge's own view of whether he is biased.
When the Litigant Appointed the Judge
Bannon's view is that a run-of-the-mill appointment would likely not meet that standard. No rule in the code of conduct or the relevant statutes explicitly requires recusal because a litigant nominated or appointed the judge, although due process and catch-all provisions about how a reasonable person would view the situation still apply. As for Judge Cannon, whom President Trump appointed in 2020, she concludes that the nomination alone would not trigger a recusal requirement. Senate confirmation, she adds, further distinguishes the situation from Caperton, because many participants are involved in placing a judge on the bench.
Facts That Could Matter
A party seeking recusal, Bannon says, would look for specific facts: whether the judge was asked for, or gave, assurances about how she would approach cases involving the president; whether any promises were made; and whether the president said anything suggesting he expected her to protect his interests. The question is whether a reasonable person would see a serious risk of actual bias arising from the relationship or a debt of gratitude.
What to Know Now
The matters discussed here have concluded. The Eleventh Circuit later reversed Judge Cannon's special-master order in the Mar-a-Lago search dispute. She then presided over the criminal case charging Mr. Trump with retaining classified documents and, in July 2024, dismissed it on the ground that the special counsel's appointment was unlawful; the government dropped its appeal as to Mr. Trump after the 2024 election. No recusal was ordered. Caperton remains the constitutional benchmark, and the federal recusal statute, 28 U.S.C. § 455, still requires judges to step aside when their impartiality might reasonably be questioned. In November 2023 the Supreme Court adopted its first formal Code of Conduct for Justices, which leaves recusal decisions to each justice and has no enforcement mechanism. Reform advocates continue to press for stronger, enforceable recusal rules, while others warn that easy disqualification could invite judge-shopping and pressure on judicial independence.
