Stempel — Volume 57, Issue 3

The duty to sit doctrine, rooted in judicial ethics, requires judges to hear and decide cases unless compelling grounds for disqualification exist. Stempel examines the troubling persistence of what he terms the "pernicious" version of this doctrine, which discourages judges from recusing themselves absent absolutely clear disqualification grounds. Despite being formally abolished in federal law and the ABA Model Code of Judicial Conduct in the 1970s, state courts and some federal courts continue invoking the duty to sit concept. This persistent endorsement reflects judicial resistance to change and sloppy legal reasoning rather than sound policy. Stempel traces the doctrine's history and demonstrates how courts inappropriately invoke it to justify continued participation in cases where bias, prejudice, or partiality is present. The article critiques the doctrine's counterintuitive logic—that judges should remain on cases where disqualification grounds are unclear—and argues this undermines public confidence in judicial neutrality. Stempel advocates for clearly distinguishing between benign and pernicious versions of judicial obligation, and for eradicating the problematic doctrine through consistent application of rigorous recusal standards.

Topics: Constitutional Law · Legal Theory · Evidence & Procedure

Keywords: duty to sit · judicial disqualification · recusal · ABA Model Code · judicial ethics · impartiality · Laird v. Tatum