Military Judge recusal

Motions to recuse a military judge or sua sponte recusal are becoming more frequent in military justice.

We have the “Spath Issue,” the now “Keane Issue,” both from the Commissions. I and several others are litigating appeals based on one military judge in the Army.

Each of the cases relate to disclosure of information so the parties can voir dire and if appropriate, challenge the military judge.

Here is an article worth the read.

Michael Paradis, Judicial Disclosure & the Judicial Mystique. 49 HOFSTRA LAW ___ (2021).

Judicial neutrality is said to be the bedrock of the American legal system. It is a principal safeguard of fairness. It signals the appearance of fairness and thereby bolsters the public’s faith in the stability of the country’s rule of law, which depends upon the belief that judicial decisions are decided on principle, not personal caprice. If state power is rule governed, its modalities should obey Leibnitz’ salva veritate principle.2 Those wielding state power in the particular case must be interchangeable without meaningfully affecting the result. A variety of rules and rituals, therefore, aim to depersonalize the judiciary. In addition to a rigorous confirmation process, life tenure, and salary protection for federal judges, judges typically are addressed by impersonal titles, such as “your honor” or “the court,” wear trademark black robes, and sit by designation of a lottery systems that randomly selects the cases on their dockets. All of these rules and rituals aim to foster what I call the “judicial mystique,” a presumption that the judge deciding a case is the mere embodiment of the state; not a person with individual interests, biases, relationships, appetites, and foibles. But, of course, judges are people.