PrepTest 75, Section 4, Question 8

The current approach to recusal and disqualification of judges heavily emphasizes appearance-based analysis. Professional codes of conduct for judges typically focus on the avoidance of both impropriety and the appearance of impropriety. Judges are expected to recuse (i.e., remove) themselves from any case in which their impartiality might reasonably be questioned. In some jurisdictions, statutes allow a party to a court proceeding to request disqualification of a judge for bias. In other jurisdictions, the responsibility for recusal falls upon the judge alone.

The rules provide vague guidance at best, making disqualification dependent on whether the judge's impartiality "might reasonably be questioned," without giving any idea of whose perspective to take or how to interpret the facts. It is a mistake for rules governing judicial ethics to focus on the appearance of justice rather than on the elimination of bias that renders a judge cognitively incapable of properly reaching a just outcome because of a too-close personal involvement in the matter before the court. Focusing on appearances may cause sources of actual bias that are not apparent to outside observers, or even to judges themselves, to be overlooked.

The function of the law is the settlement of normative disputes. Such settlement will work only if it is well reasoned. The achievement of actual justice by the use of legal reasoning is the primary function of judges. Therefore, the best way to address concerns about judicial impartiality is to require judges to make their reasoning transparent. Accordingly, we should eliminate disqualification motions alleging bias, whether actual or apparent. This unreliable mechanism should be replaced by the requirement of a written explanation of either the reasons for a judge's decision to recuse, or if the judge decides against recusal, the legal basis for the judgment reached, based on the merits of the case. That is, judges should not be required to explain why they did not recuse themselves, but rather they should be required to show the legal reasoning on the basis of which their ultimate judgments were made.

A potential objection is that the reasoning given by the judge, however legally adequate, may not be the judge's real reasoning, thus allowing for the presence of undetected bias. However, as long as a knowledgeable observer cannot find any fault with the legal reasoning provided, then there are no grounds for complaint. Under the law, a right of recourse arises only if harm accrues. If a judge who had no improper considerations in mind could have reached the same conclusion for the reasons stated by a judge who had hidden reasons in mind, then there is no harm on which to base a complaint.

The current approach to recusal and disqualification of judges heavily emphasizes appearance-based analysis. Professional codes of conduct for judges typically focus on the avoidance of both impropriety and the appearance of impropriety. Judges are expected to recuse (i.e., remove) themselves from any case in which their impartiality might reasonably be questioned. In some jurisdictions, statutes allow a party to a court proceeding to request disqualification of a judge for bias. In other jurisdictions, the responsibility for recusal falls upon the judge alone.

The rules provide vague guidance at best, making disqualification dependent on whether the judge's impartiality "might reasonably be questioned," without giving any idea of whose perspective to take or how to interpret the facts. It is a mistake for rules governing judicial ethics to focus on the appearance of justice rather than on the elimination of bias that renders a judge cognitively incapable of properly reaching a just outcome because of a too-close personal involvement in the matter before the court. Focusing on appearances may cause sources of actual bias that are not apparent to outside observers, or even to judges themselves, to be overlooked.

The function of the law is the settlement of normative disputes. Such settlement will work only if it is well reasoned. The achievement of actual justice by the use of legal reasoning is the primary function of judges. Therefore, the best way to address concerns about judicial impartiality is to require judges to make their reasoning transparent. Accordingly, we should eliminate disqualification motions alleging bias, whether actual or apparent. This unreliable mechanism should be replaced by the requirement of a written explanation of either the reasons for a judge's decision to recuse, or if the judge decides against recusal, the legal basis for the judgment reached, based on the merits of the case. That is, judges should not be required to explain why they did not recuse themselves, but rather they should be required to show the legal reasoning on the basis of which their ultimate judgments were made.

A potential objection is that the reasoning given by the judge, however legally adequate, may not be the judge's real reasoning, thus allowing for the presence of undetected bias. However, as long as a knowledgeable observer cannot find any fault with the legal reasoning provided, then there are no grounds for complaint. Under the law, a right of recourse arises only if harm accrues. If a judge who had no improper considerations in mind could have reached the same conclusion for the reasons stated by a judge who had hidden reasons in mind, then there is no harm on which to base a complaint.