Reforming Recusal Rules: Reassessing the Presumption of Judicial Impartiality in Light of the Realities of Judging

In recent years a number of high profile disqualification disputes in the federal and state courts have caught the attention of the media and the public. These cases have involved such controversial subjects as abortion, death penalty, [judicial] elections, health insurance reform, and same sex marriage. In each instance, there has been an outcry from some segment of the public and the press when a presiding jurist was asked to recuse but declined to step aside. Unfortunately, even if the jurist writes a decision explaining his refusal to recuse, the reasons given often are unsatisfying and do little to quell suspicions of bias. Instead, the litigants, members of the press, and the public are left questioning whether the jurist actually is unbiased in the specific case and even doubting the impartiality of the judiciary as a whole.This negative reaction to refusals to recuse is caused, at least in part, by the Bias Blind Spot, which creates asymmetries in people’s perceptions of bias in themselves versus their perception of bias in others. This asymmetry of perception also colors the jurist’s disqualification decisions and can lead, in cases that seem “obvious” to persons other than the challenged jurist to require recusal. These differences in perception of bias between the bench, on the one hand, and the bar and public on the other hand, conflict with the long-standing presumption of impartiality that under-girds judicial recusal rules. In addition, these differences in perceptions and presumptions of impartiality are exacerbated by the context in which some disqualification decisions play out — politically charged circumstances that cause further suspicions of the jurists’ motives. Currently, public confidence in all branches of our government — including the judiciary — is at historic lows. This waning level of trust in our government institutions may not be unwarranted given growing evidence of strategic decision making by judges. However, the distrust further aggravates the perception of a partiality problem. Thus, this Article proposes reforms of the substantive standards applied in disqualification disputes with the hopes of building consensus about how to decide when a jurist should be disqualified in order to protect litigants’ rights to a fair tribunal and to bolster public confidence in the judiciary.Specifically, this Article recommends that all federal and state courts adopt one of two substantive standards for disqualification depending on who makes the initial disqualification decision. First, if the challenged jurist is the initial decision maker, then the decision should be limited to applying the specific per se rules for partiality and passing on the accuracy of the factual allegations of bias when the “catch all” substantive standard is plead. In both instances, the evidentiary standard should remain the “appearance of bias” standard because this lowest of the evidentiary thresholds for finding bias better accounts for the impact of the Bias Blind Spot. Second, however, if another jurist, the entire court, or another court is the initial decision maker, then there should be no limit on the decision maker’s authority to decide disqualification claims made under either the per se or the “catch all” rules, or both. Also, given that the Bias Blind Spot will have limited, if any impact, on these decision makers the higher evidentiary threshold of “probability of bias,” which was articulated in Caperton should be applied. This two-pronged approach is designed to: (1) balance the realities of judging (including the impact of the Bias Blind Spot) against our ideals about judges that are embedded in the presumption of impartiality; and (2) avoid jurists’ resistance to recusal reforms by recognizing the judiciary’s generally well-deserved reputation for impartiality. Thus, these dual standards are offered as a way to offer meaningful protection for litigants’ Due Process rights to a fair trial while at the same time fostering public confidence in the impartiality of individual jurists and the judiciary as a whole.