What Every Judge Should Know about the Appearance of Impartiality

"[S]uch a delightful surprise" was Justice Ruth Bader Ginsburg's 2009 reaction to Chief Justice William H. Rehnquist's abrupt change of view in a 2003 gender discrimination case. (1) Why would he change his mind after years of disfavoring women's rights? "Justice Ginsburg said the Chief Justice's 'life experience' had played a part in the shift." (2) His recently divorced daughter's demanding job led him to "denounc[e] 'stereotypes about women's domestic roles." (3) A surprise perhaps, but should the Chief Justice have recused himself because his daughter's situation affected his vote? A judge's "life experiences" are one reason that his or her disqualification may be appropriate, because his or her "impartiality might reasonably be questioned." (4) That phrase is the linchpin for judicial disqualification in every state, and is based on the American Bar Association's Code of Judicial Conduct "CJC" All states include within their code of judicial conduct a directive for judges to follow regarding disqualification when "his [or her] impartiality might reasonably be questioned." (5) The CJC has specific examples presuming that the judge's impartiality "might reasonably be questioned." (6) These rules of presumed or actual bias relate to the judge's personal bias, a close family member as a party, counsel or witness in the case, or a family member in the judge's household with an economic or other interest in the outcome of the proceeding. (7) When specific rules of presumed or actual bias do not apply because the facts do not fit the ethical standard, the judge or a moving party still may rely upon the above standard based on apparent bias or the appearance of partiality, even though no actual bias exists. (8) The case law frequently cites the United States Supreme Court statement that the appearance of impartiality is as important as actual impartiality. (9) Structurally, the "appearance of partiality" standard functions as a residuary clause for judges to apply when the specific examples of presumed bias do not apply. For example, CJC provisions about presumed bias preclude a judge from presiding in a case when the judge's child or spouse is a party or counsel.  A judge should disqualify him or herself, prior to or pursuant to a motion to recuse: 1) when he or she doubts his or her ability to preside impartially; or 2) when a person of ordinary prudence in the judge's position, knowing all the facts known to the judge, would find a reasonable basis for questioning his or her impartiality. (11) The latter standard for assessing the need for the judge's disqualification is more demanding because: The disqualification decision must reflect not only the need to secure public confidence through proceedings that appear impartial, but also the need to prevent parties from too easily obtaining the disqualification of a judge, thereby potentially manipulating the system for strategic reasons, perhaps to obtain a judge more to their liking. (12) In either instance, when the trial judge denies a motion to disqualify, the appellate standard of review is whether the trial judge's ruling constituted an abuse of discretion. (13) This article explores the "appearance of partiality" principle. Part I of the article examines CJC standards relating to the appearance of partiality and the accompanying CJC commentary for all state CJC provisions. Part II examines the common law concepts of a judge's duty to sit and the rule of necessity, both of which can affect the judge's ability and willingness to preside when challenged on ethical grounds. Part III briefly describes the United States Supreme Court cases that interpret and apply the appearance of partiality concept, and continue to explore due process violations for the appearance of partiality. Part IV looks at violations of other CJC rules that may still lead to judicial disqualification for the appearance of partiality, e.