THE RECUSAL DILEMMA: BALANCING IMPARTIALITY AND PRACTICALITY IN MODERN COURTS

Author: Connor Blatt, Symposium Editor

Introduction

‍Recently, there have been two interesting cases of judicial recusals, both related to college athletics. First, Duke University sued its former quarterback, Darian Mensah, to prevent him from entering the transfer portal, after Mensah had previously agreed to return to Duke.[i] The judge in the case, Durham County Superior Court Judge Michael O’Foghludha, denied Duke’s request for a temporary restraining order, then recused himself.[ii] O’Foghludha is a Duke basketball season-ticket holder, and thus a booster according to NCAA rules.[iii] The second case concerned Charles Bediako, a former University of Alabama basketball player who is seeking to return to the team after having been an NBA draft pick.[iv] The judge in Bediako’s case voluntarily recused himself, after a motion for recusal was submitted by the NCAA.[v] Tuscaloosa Circuit Court Judge James Roberts is listed as a donor on the Crimson Tide Foundation’s website.[vi] His replacement, Judge Daniel Pruet, is another Alabama graduate.[vii] Pruet is also overseeing the murder case of former Alabama basketball player Darius Miles.[viii] These situations raise questions about the nature of judicial recusal, and how much of a conflict of interest is necessary for recusal to occur. This post will suggest that the practical considerations surrounding recusal generally outweigh any actual impartiality that is present.

Rules

Recusal requirements differ from jurisdiction to jurisdiction, but many are modeled after the federal recusal guidelines.[ix] The federal rules no longer refer to the process as recusal; instead, the term is disqualification.[x] The difference has no real import. The federal rule specifies that a judge “shall disqualify himself in any proceeding in which his impartiality may reasonably be questioned.”[xi] While the rule lists common situations in which disqualification may be warranted, it also leaves a lot of leeway for judges.[xii]

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Federal case law has defined the standard for evaluating disqualification as “whether a reasonable or objective person, knowing all of the facts, would harbor doubts concerning the judge’s impartiality.”[xiii] The objective standard presumes a thoughtful and well-informed observer, not a “hypersensitive, cynical, or suspicious person.”[xiv] In the Duke and Alabama cases, a “thoughtful and well-informed” observer is likely to understand that being a donor to an institution does not necessarily imply that the judge cannot impartially decide a case involving the university. In contrast, only a cynical or suspicious person would believe that a judge would allow their university affiliation to affect their impartiality.

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The highest profile controversies regarding judicial recusal have come at the Supreme Court level.[xv] Justices Clarence Thomas and Samuel Alito have faced criticism for their refusal to recuse themselves from cases involving the 2020 election and the January 6th riots, after both were accused of being tacit supporters of President Trump’s interests in the cases.[xvi] Partially in response to the criticism, in 2023 the Supreme Court enacted a new, non-binding ethics code.[xvii] This has done little to blunt criticism of the Court.[xviii]

Practical Considerations

While recusal decisions at the Supreme Court level are certainly high profile, potential situations involving recusal obviously occur at the State and local level as well. The smaller a town or other jurisdiction is, the more likely it is that a Judge would have some sort of knowledge of the proceeding­—whether they have previously practiced with the attorneys, have personal knowledge of the facts, or have a financial interest in the outcome.[xix] In Tuscaloosa County, where Charles Bediako’s case was heard, all nine of the Judges attended the University of Alabama at some point.[xx] While it is likely that not all are Alabama boosters, each could reasonably have their impartiality questioned in case involving a player who could help Alabama basketball win more games.

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Judge Jennifer Kinsley of Ohio’s First District Court of Appeals says that she would not have recused herself in the Bediako case.[xxi] She notes that an important and perhaps overlooked aspect of recusal is the workload it adds to whichever judge is asked to take the place of the recused judge.[xxii] Moreover, Judges have a duty to decide the cases that come before them.[xxiii] In extremely rural counties, any recusal would lead to a judge unfamiliar with the locale taking over the case.[xxiv] At the Supreme Court level, there is no way for another Justice to take over the case if enough Justices recuse themselves, as happened in the recent case of Baker v. Coates.[xxv] At both extremes, recusal poses a significant practical challenge.

Conclusion

The fair administration of justice is a paramount consideration. While potential instances of questioned impartiality can be concerning, justice is also served by allowing cases to be heard and decisions to be made. In the modern world, Judges are increasingly likely to have some sort of interest in the cases that come before them. Justice would be better served by allowing cases to be heard and saving recusal for only the most serious conflicts of interest. Balancing impartiality with the opportunity to be heard and the workload for judges is a consideration of which attorneys must always be mindful.         

[i] Mark Schlabach, Duke sues Darian Mensah, tries to stop transfer portal entry, ESPN (January 20, 2026), https://www.espn.com/college-football/story/_/id/47673543/duke-sues-darian-mensah-tries-stop-transfer-portal-entry.

[ii] Id.

[iii] Id.; NCAA, Role of Boosters, https://www.ncaa.org/sports/2013/11/27/role-of-boosters.aspx (last visited March 8, 2026).

[iv] Associated Press, Alabama judge recused from Charles Bediako's eligibility case, ESPN (January 28, 2026), https://www.espn.com/mens-college-basketball/story/_/id/47759174/alabama-judge-recuses-bediako-eligibility-case.

[v] Id.

[vi] Id.

[vii] Id.

[viii] Id.

[ix] Compare 28 U.S.C. § 455 with OH ST CJC R. 2.11 and KY. Rev. Stat. Ann. § 26A.015 (LexisNexis 2025).

[x] 28 U.S.C. § 455.

[xi] Id.

[xii] See Id.

[xiii] Porretto v. City of Galveston Park Bd. of Trs., 113 F.4th 469, 492 (5th Cir. 2024); Sao Paulo the Federative Republic of Braz. v. Am. Tobacco Co., 535 U.S. 229, 232-33 (2002).

[xiv] Porretto, 113 F.4th at 492.

[xv] Mark Sherman, To recuse or refuse? A look at Supreme Court justices’ decisions on whether to step aside in cases, AP (May 29, 2024), https://apnews.com/article/supreme-court-alito-flags-recusal-capitol-riot-f4ef46683365c92e8a3ff9df7894b586; Alison Durkee, Supreme Court Won’t Take Up Case Because Too Many Justices Recused Themselves, Forbes (May 19, 2025), https://www.forbes.com/sites/alisondurkee/2025/05/19/supreme-court-wont-take-up-case-because-too-many-justices-recused-themselves/.

[xvi] See Durkee, supra Note xiii.

[xvii] Id.

[xviii] Id.

[xix] See Rita Williams, Small-Town Justice: How Judicial Bias Thrives in Rural Courts, Clutch Justice (May 5, 2025) https://clutchjustice.com/2025/05/05/judicial-bias-small-town-courts/ (used only to state the proposition that smaller jurisdictions face sharper recusal challenges).

[xx] Judicial Directory, Sixth Judicial Circuit Court of Alabama, https://tuscaloosa.alacourt.gov/judiciary-directory/ (last visited March 8, 2026).

[xxi] Interview with Judge Jennifer Kinsley, Ohio’s First District Court of Appeals (Feb. 10, 2026).

[xxii] Id.

[xxiii] Id.; See U.S. Const. Art. III. § 1; United States v. Holland, 501 F.3d 1120 (9th Cir. 2007).

[xxiv] See Judges, Wheeler County Circuit Court https://www.courts.oregon.gov/courts/wheeler/Pages/default.aspx (last visited March 8, 2026) (no judge resides in Wheeler County, Oregon’s smallest county.)

[xxv] Baker v. Coates, 145 S. Ct. 2699 (2025); See also Durkee, supra Note xiii.

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