I. Introduction

A judicial recusal is the voluntary withdrawal of a judge or justice from a case to ensure impartiality and maintain public confidence in the legal system. It typically occurs when a judge has a conflict of interest with the case, a personal bias, or a close relationship with a party involved. As such, when judges step aside from cases due to potential conflicts of interest or concerns about imperiality, they reinforce the principle that justice must not only be done, but must also be seen to be done. 

In spite of establishing such transparent legal safeguards, however, a judge is interestingly not required to state the reasoning of their recusal, ultimately raising important questions about consistency, transparency, and potential strategic behavior in the United States’ judiciary. 

Much of the existing scholarship on judicial recusal has focused on the federal courts, particularly the Supreme Court of the United States, where high-profile controversies have drawn attention to the issue. Justice Elena Kagan, famously, refused to recuse herself from National Federation of Independent Business v. Sebelius despite her prior role as Solicitor General during which she helped prepare a legal defense for Obamacare — underscoring the broader tension between formal ethical standards and individual judicial judgement. In contrast, recusal practices at the state level remain relatively underexplored, despite the fact that state supreme courts decide the vast majority of cases affecting citizens’ daily lives. 

As such, this paper examines judicial recusal behavior in the Nebraska Supreme Court over a period of roughly nine years as part of a larger research project. The project aims to collect and analyze justice recusal behavior from the years 1980-2025 across all state supreme courts, with a focus on identifying observable patterns across cases, justices, and time. Rather than attempting to determine the subjective motivations behind individual recusal decisions — which are not directly observable in the available data — this study asks: What patterns characterize judicial recusal behavior in the Nebraska Supreme Court, and under what observable or inferred conditions do justices recuse themselves? By analyzing the systematic variation in recusal rates, this paper aims to shed light on how recusal functions in practice within a state-level judicial system. 

A key limitation of his analysis is the overwhelming absence of information regarding the specific reasons for recusal in each case. Without direct insight into whether recusals stem from financial conflicts, prior involvement with a case, personal relationships, strategic considerations, or other biases, this analysis cannot make definitive claims about causation and must default to making inferences. However, by focusing on observable behavior, this study provides an important first step in identifying consistent patterns that may inform future research, thus contributing to a broader understanding of judicial accountability and transparency at the state level, irrespective of the lack of complete information.

II. Background 

Rooted in principles of due process, judicial recusal is intended to prevent both actual bias and the appearance of bias in judicial decision-making. As previously established, legal standards governing recusal generally require judges to step aside in cases involving financial interests, prior involvement, or personal relationships that could reasonably call their impartiality into question. However, because these standards are often broadly defined and self-enforced, recusal decisions ultimately rely heavily on individual judicial discretion. 

Scholars have long debated whether recusal is primarily driven by ethical compliance or strategic behavior. On one hand, the dominant normative view emphasizes that judges act in good faith to uphold professional and constitutional obligations. From this perspective, recusal reflects adherence to legal ethics and institutional norms designed to safeguard fairness. On the other hand, some research suggests that recusal may also be influenced by strategic considerations, such as avoiding or influencing politically sensitive cases, controversial rulings, or situations that could risk a judge’s personal reputation. This tension between ethical duty and strategic decision-making makes recusal a particularly complex and difficult behavior to study solely empirically. 

Scholarly work on judicial recusal generally falls into three overlapping areas: (1) legal standards and doctrine, (2) normative debates about judicial ethics, and (3) empirical studies of judicial behavior. Together, this literature highlights both the importance of recusal and the difficulty of evaluating how it operates in practice, and this section outlines each of the three strands in detail below. 

Legal scholarship has focused heavily on the doctrinal foundations of recusal, particularly the balance between due process and judicial independence. Jeffrey W. Stempel from the University of Nevada, Las Vegas-William S. Boyd School of Law argues that the Supreme Court’s holding in Caperton v. A.T. Massey Coal Co. failed to create sufficiently clear and consistent constitutional safeguards for recusal, leaving substantial discretion to individual judges. As a result, recusal standards remain relatively open-ended, leaving substantial discretion in the hands of individual judges. This ambiguity has led scholars to question whether existing frameworks are sufficient to ensure consistency and public confidence. 

A second strand of literature examines recusal through a normative lens, debating whether judges reliably adhere to ethical obligations or whether recusal decisions are shaped by strategic considerations. Some scholars argue that professional norms and reputational concerns encourage judges to err on the side of caution when conflicts arise. Empirical work by James L. Gibson from Washington University at St. Louis and Gregory A. Caldeira from Ohio State University’s Moritz College of Law interestingly suggests that recusal can partially restore public confidence when potential conflicts of interest arise, particularly in elected state courts. Others suggest that judges may selectively recuse themselves in ways that avoid politically difficult cases or preserve influence over important legal questions — like in NFIB v. Sebelius. Meanwhile, in the midst of these competing theories, research by Matthew Menendez and Dorothy Samuels raises concerns about consistency and transparency in the courts as their research finds that many recusal systems rely excessively on judges policing themselves.

A third body of research takes an empirical approach, analyzing patterns in judicial behavior to better understand how institutional and individual factors shape decision-making. Lee Epstein of the University of Southern California Gould School of Law and Jack Knight from Duke University have demonstrated that observable recusal patterns can reveal important institutional dynamics even when judges’ subjective motivations remain unknown. While much of this work does not focus exclusively on recusal behavior, it demonstrates that observable behaviors — such as variation across judges, case types, or time — can provide meaningful insight into underlying dynamics even when motivations are not directly observable. This approach is especially relevant in the context of recusals, where explanations for individual decisions are often unavailable or incomplete. 

Notably, the majority of empirical and theoretical work on recusal has centered on the federal judiciary, leaving state courts relatively understudied. This is a significant gap, as state supreme courts operate under different institutional pressures, including electoral accountability and variation in ethical rules — a point emphasized by John C. Domino from Sam Houston State University in his specific analysis of the historical development of judicial recusal rules in Texas. These differences may shape recusal behavior in ways that are not captured by federal-level analyses, underscoring the need for more systematic study at the state level.

III. The Nebraska Judicial System

Like many state judicial systems, Nebraska relies largely on judicial self-regulation in matters of recusal. Under the Nebraska Code of Judicial Conduct §5-302.11, justices are expected to disqualify themselves in proceedings where their impartiality “might reasonably be questioned,” including situations involving personal bias, prior involvement, or financial interests. However, as in many jurisdictions, recusal decisions are typically made by the justices themselves and are rarely accompanied by detailed public explanations. As a result, while recusal orders are observable in court records, the precise motivations underlying individual decisions remain unclear. 

Structurally speaking, the Nebraska Supreme Court consists of seven justices, including a chief justice and six associate justices, each representing one of the state’s judicial districts. Unlike the federal judiciary, Nebraska uses a merit-based selection system often associated with the Missouri Plan. When a vacancy occurs, a judicial nominating commission submits at least two candidates to the governor, who appoints a justice from that list. After appointment, justices periodically face retention elections rather than contested partisan races. This system is designed to balance judicial independence with democratic accountability while reducing overt political pressure in the judicial selection.

These institutional characteristics may shape recusal behavior in important ways. Because Nebraska justices do not run in traditional competitive elections, they may face different political and reputational incentives than judges in states with partisan judicial contests. At the same time, the court’s relatively small size means that recusals can have a noticeable impact on decision-making and case outcomes. Even in the absence of stated reasons for recusal, patterns across justices, case types, and years may therefore provide insight into how recusal functions in practice within the Nebraska judiciary.

IV. Data & Methodology

This study analyzes judicial recusal behavior in the Nebraska Supreme Court between the years 2004 and 2013 as part of a larger research project meant to examine recusals across all state supreme courts between 1980 and 2013. Using an original dataset compiled from publicly available legal and media sources, the dataset was constructed through systematic coding of recusal-related information  for each justice serving on the Nebraska Supreme Court during the period under examination. Information was gathered primarily through online databases, court records, and newspaper coverage (if available) documenting recusal requests and judicial responses. 

The primary unit of analysis in this study is the individual justice-recusal observation. This means that each entry represents all the justices involved in a case that made its way to the Nebraska Supreme Court, and it codes instances associated with a recusal as documented in the opinion of the court. In other words, each case has seven entries to represent each of the seven justices. There was little to no available information regarding any controversies or other publicly documented discussions pressuring a particular justice to recuse themselves from a case, which complicated matters for the analysis. This structure allows for comparison across individual justices in specific cases as well as across time periods. 

The coding framework included both justice-level and case-level variables. Justice-level variables included year selected to the court, race, sex, political identification, and selection method. Nebraska’s merit-based judicial appointment system meant that all justices in the dataset shared the same formal selection mechanism. Case-level variables capture the nature of the alleged conflict of interest that may require recusals, including financial conflicts, family relationships, pre-bench activity, potential bias, anticipatory conflicts, and other grounds for recusal requests. Due to the lack of publicly available data detailing the actual reasons for justice recusals, this section required the most amount of inferences, and the vast majority of recusal cases were defaulted to “5 - potential bias or impartiality.” Additional variables identified the party requesting the recusal (which was typically inferred to be a self-recusal), whether the justice ultimately recused themselves, and any publicly available explanation for the decision.

The dataset also incorporated contextual indicators intended to capture the broader visibility and political salience of recusal controversies — namely the number of newspaper articles, editorials, or commentaries discussing a particular justice and recusal issue during a given year was coded as a proxy for public attention. Due to the lack of publicly available information, this was also often coded as a zero (0). Variables identifying plaintiff and defendant types were also included to determine whether recusals occurred more frequently in disputes involving government entities, businesses, organizations, or private individuals. 

Because the available data does not consistently provide detailed explanations for recusal decisions, this study adopts an exploratory and descriptive methodological approach. The primary dependent variable is whether a justice recused themselves from a case. Independent variables include justice characteristics, conflict type, requestor identity (if applicable), and temporal variation across years. The analysis of this project relies primarily on these variables and on frequency distributions and cross-tabulations generated through SPSS in order to identify recurring patterns and variation across categories. 

As previously alluded to, there are several limitations in this study and the methods guiding it. First, there were several recusals that did not generate media coverage, making it nearly impossible to determine the exact reason guiding a judge’s recusal. This leads itself into the second limitation: the related coding categories required interpretation based on the information available. Finally, because the analysis focuses exclusively on Nebraska, the findings, in this state, are not fully generalizable to other state supreme courts with different institutional structures or political environments. 

Despite these limitations, the dataset provides a systematic overview of recusal behavior within a state supreme court over an extended historical period when joined with the larger research project. By focusing on observable patterns, this study contributes to the broader literature on judicial ethics, transparency, and accountability in state-level courts.

V. Results & Findings

    A. Recusal Outcome

The frequency analysis indicates that recusals were relatively uncommon within the dataset. Of all valid observations, 92.3% of cases resulted in no recusal, while only 7.7% involved a justice recusing themselves. These findings suggest that the justices of the Nebraska Supreme Court overwhelmingly chose to remain on cases even when recusal-related concerns or discussions might have been present. 

This pattern may reflect the broader institutional norm of “duty to sit in,” in which judges are generally expected to hear cases unless a clear conflict requires disqualification. At the state supreme court level, recusals may also carry practical institutional consequences because removing a justice from a case can alter the balance and functioning of a relatively small court. The low recusal rate could therefore also indicate that Nebraska justices may apply recusal standards relatively narrowly or conservatively. Also, because the dataset in this project only captures observable actions and not internal deliberations, the findings cannot determine whether non-recusal decisions reflected genuine confidence in impartiality, institutional pressure, or strategic calculation

    B. Justice Political Identification

The political composition of the dataset was heavily skewed toward Democratic-identifying or -appointed justices, despite the state having been reliably Republican for the past several decades. Among the valid observations, nearly 83% involved Democratic justices, while only about 16.7% involved their Republican counterparts.

This distribution likely reflects the historical composition of the Nebraska Supreme Court during the years examined rather than any direct relationship between political affiliation and recusal behavior. However, the imbalance remains important analytically nonetheless as it limits the extent to which meaningful comparisons can be made across partisan categories. Given the overwhelming proportion of Democratic-coded justices in the dataset, any apparent differences in recusal behavior by part identification should be interpreted cautiously. Nevertheless, political identification remains relevant because prior scholarship suggests time and time again that perceptions of ideology and judicial partnership may shape public reactions to recusal controversies, particularly in politically salient cases.

     C. Justice Race

All valid observations in the dataset involved white justices, accounting for 100% of the recorded cases. No racial diversity was represented among the Nebraska Supreme Court justices included in the study period. 

The complete lack of racial variation significantly limits the ability to examine whether race influenced recusal behavior or public scrutiny surrounding recusal disputes — if these occurred at all. At the same time, this finding reflects broader historical patterns of demographic homogeneity within many state supreme courts during the late twentieth and early twenty-first centuries. The absence of diversity may also shape institutional norms and public perceptions of what judicial legitimacy looks like, although it is important to note that this study cannot directly measure those effects.

    D. Justice Sex

The dataset was also heavily male-dominated; male justices accounted for 85.7% of the valid observations, while female justices represented only 14.3%. In fact, there was only one female justice present on the court under the period of analysis. 

This imbalance mirrors the historical underrepresentation of women in state appellate courts during much of the study period. Because male justices constituted the overwhelming majority of observations, the data provides very limited ability to assess whether gender meaningfully affected recusal behavior. However, the disparity itself — like other racial and political ones in this dataset — remains significant, as institutional demographics may influence judicial culture, public scrutiny, and other expectations regarding impartiality and ethics. The limited representation of women on the Nebraska Supreme Court therefore reflects broader structural patterns within the legal profession and judiciary during this era. 

    E. Reasons for Recusal

The overwhelming majority of valid observations, 92.4%, were coded as “0,” indicating no recusal at all. Among the recusals, “potential bias or impartiality” (coded as category 5) accounted for 7.5% of valid observations. Other categories, including financial conflicts (category 1), pre-bench activity (category 3), and miscellaneous ‘other’ reasons (category 7), appeared only rarely. 

These findings reinforce one of the central limitations of recusal research: the lack of publicly available explanations for judicial disqualification decisions. Even when recusal controversies arise, courts and individual justices often provide little detail regarding the underlying rationale. The relative dominance of “potential bias or impartiality” among the identifiable categories stems from an inference that was made to justify the recusal and lack of evidence supporting the actual reason. However, it also suggests that recusal disputes in Nebraska were more commonly framed around generalized concerns regarding fairness rather than concrete financial or familial conflicts — at least on the surface.

‍     ‍F. Victim Race

The victim race variable was dominated by cases in which the victim’s race could not be determined. “Cannot determine” — or category 7 — accounted for 82.7% of all valid observations. Among the identifiable categories, white victims represented 14.3% of observations (category 1), while Black (category 2), Hispanic/Latinx, Native American (category 5), and other racial categories each accounted for relatively small percentages. 

The high proportion of indeterminate observations substantially limits the usefulness of this variable by drawing broader conclusions about racial dynamics in recusal disputes. Nevertheless, the data suggests that publicly available reporting and court documentation often omitted demographic information entirely, reflecting the broader opacity of recusal-related records. The limited identifiable racial variation also makes it difficult to assess whether recusal controversies disproportionately emerged in cases involving particular racial groups. 

‍     ‍G. Defendant Race

Similar patterns appeared in the defendant race variable. “Cannot determine” constituted 71.6% of all observations (category 7). Among identifiable racial categories, white defendants (category 1) represented 20.1% of observations, followed by Black defendants (category 2) at 4.2% and Hispanic/Latinx defendants (category 3) at 2.4%. Other racial categories each accounted for very small percentages. 

As with victim race data, the large number of indeterminate observations limits the extent to which strong conclusions can be drawn regarding races involved in the case and recusal behavior. However, the lack of complete demographic information itself can be noteworthy. It demonstrates the broader difficulty of conducting systematic empirical analysis on judicial recusal using publicly available sources — particularly at the state level where disclosure practices may be inconsistent. The findings therefore highlight both the possibilities and limitations of observational recusal research. 

VI. Discussion

The findings of this study reveal several broader patterns regarding judicial recusal behavior within the Nebraska Supreme Court. Most notably, recusals themselves were relatively uncommon. Among valid observations, over 92% of cases resulted in no recusal, while fewer than 8% involved a justice stepping aside from a case, suggesting that the justices on the Nebraska Supreme Court generally remained on cases even when concerns regarding impartiality or conflicts of interest may have been raised. 

One possible explanation for this trend is the institutional norm commonly described in judicial ethics literature as the “duty to sit,” which was briefly alluded to earlier in this analysis. Under this norm, judges are expected to participate in cases unless a clear and compelling conflict requires disqualification. Particularly in a small state supreme court, recusals may create administrative burdens or alter the balance of judicial decision-making, potentially encouraging restraint in the use of recusal. The findings therefore appear consistent with scholarship emphasizing institutional continuity and judicial participation over frequent disqualification. 

At the same time, the data also reflects a judiciary that was both politically and otherwise demographically homogenous during the study period. The overwhelming majority of observations involved white male justices, and democratic-identifying justices accounted for more than four-fifths of all valid cases. While these characteristics do not independently explain recusal outcomes, they provide important institutional context for understanding how judicial norms may develop within a relatively uniform court environment. A court with limited demographic diversity may experience fewer internal ideological or experiential differences regarding perception of bias, impartiality, and judicial ethics. However, because the dataset does not measure judicial attitudes directly, such interpretations remain necessarily tentative. 

The findings also reinforce broader concerns regarding transparency in judicial recusal practices at large. In the overwhelming majority of observations, no publicly identifiable reason for recusal was available, causing this research to defer to generalized concerns regarding potential bias or impartiality — though for what remained largely unsubstantiated. Similarly, demographic information regarding litigants was frequently unavailable or indeterminate within public records. These patterns illustrate one of the central challenges identified throughout the literature on judicial recusal: while recusal decisions themselves may be publicly observable, the reasoning underlying those decisions often remains opaque from the public. 

This lack of transparency complicates efforts to evaluate whether recusal practices are being applied consistently or equitably. Without detailed public explanations, outside observers are left to infer judicial reasoning indirectly through observable behavior. As a result, empirical studies such as this one must rely primarily on descriptive patterns rather than definitive causal explanations. Although this limitation constrains the conclusions that can be drawn, it also highlights the importance of continued scholarly attention to recusal practices at the state level, where disclosure standards and public scrutiny may be less robust than in the federal judiciary. 

The findings of this study ultimately suggest that judicial recusal in Nebraska between 2004 and 2013 functioned less as a frequently invoked corrective mechanism and more as a limited institutional safeguard used sparingly by members of the court — for reasons one can only infer. Even so, the relatively low recusal rate does not necessarily indicate an absence of ethical concerns or conflicts of interest. Instead, it may reflect the broader structural reality that recusal standards are highly discretionary and often shaped by information institutional norms rather than rigid procedural rules, serving as a reflection of the people these structures serve. In this sense, the Nebraska Supreme Court reflects many of the tensions identified in the broader literature on judicial recusal: the competing and often intersecting demands of judicial independence, public accountability, institutional stability, and procedural fairness.

VII. Limitations & Future Research

Several limitations should be, and periodically have been, acknowledged when interpreting the findings of this study. Most importantly, the dataset does not consistently provide detailed explanations for why justices chose to recuse, or not recuse, themselves in individual cases. While recusal outcomes are observable, the motivations underlying those decisions are often unavailable within public records. It is impossible to know what was deliberated behind closed doors. As a result, this analysis cannot determine whether recusal behavior was driven primarily by ethical concerns, institutional norms, strategic considerations, or some other unforeseeable factors. Instead, this study is severely limited to identifying observable patterns in judicial behavior. 

The dataset is also constrained by the quality and completeness of publicly available information. Many observations lacked identifiable demographic information regarding litigants, and several variables contained substantial proportions of indeterminate or missing data. Because the project relied heavily on legal databases and media coverage, recusals that did not receive public attention — which was a significant portion of the cases in this study — may be underrepresented. This raises the possibility that the dataset captures more visible or politically salient disputes while overlooking less publicly documented instances of recusal consideration. 

Additionally, the demographic composition of the Nebraska Supreme Court during the study period limited variation across several key variables. Nearly all observations involved white justices, and male juices constituted a substantial majority of the dataset. Such homogeneity restricts the ability to meaningfully evaluate how race or gender may shape recusal behavior or public perception of judicial impartiality. 

Future research could build upon this study in several important ways, primarily through qualitative methods such as case studies, judicial opinions, interviews, or archival analysis to better understand the reasoning underlying recusal decisions — especially when compared with other state supreme courts as this project aims to in the long run. Because recusal behavior is often shaped by informal institutional norms and discretionary judgement, a qualitative approach may reveal dynamics that cannot be fully captured through quantitative coding alone. Future studies may also benefit from examining how media attention, political polarization and public trust in the judiciary influence recusal controversies over time.

VIII. Conclusion

Judicial recusal occupies a uniquely important position within the American legal system as it sits between the important tenets of judicial independence, ethical accountability, and public legitimacy. Although recusal is intended to protect both fairness and the appearance of impartiality, the process by which judges decide whether to step aside often remains highly discretionary and difficult to evaluate from the outside looking in. 

This study aimed to examine recusal behavior in the Nebraska Supreme Court between 2004 and 2013 as part of a larger research project examining recusals across all state supreme courts between 1980 and 2013. Using an original dataset of publicly documented case details, the findings that emerged indicate that recusals were relatively rare during the study period, with justices overwhelmingly remaining on cases despite the presence of recusal-related concerns or requests that might have existed. The analysis also revealed a court that was politically and demographically homogenous, while highlighting the broader lack of transparency surrounding judicial recusal practices and public disclosure. 

Because the available data did not consistently include explanations for recusal decisions, this study focused primarily on observable patterns rather than causal claims regarding judicial motivation. Even within these limitations, however, the findings contribute to the growing literature on judicial behavior and state-level judicial institutions. In particular, the study demonstrates how recusal practices can be examined empirically even when direct evidence of judicial reasoning remains incomplete or largely unavailable. 

More broadly, the Nebraska case illustrates the ongoing tensions between transparency and judicial direction in the administration of justice. Recusal decisions are critical to maintaining public confidence in the courts, yet the reasoning behind those decisions often remain unclear. As debates surrounding judicial ethics and legitimacy continue to expand in both state and federal courts, greater scholarly attention to recusal practices may help clarify how courts balance institutional stability, impartiality, and public accountability in practice.