Recovering judicial integrity: toward a duty-focused disqualification jurisprudence based on Jewish law.

• Author: Pill, Shlomo

Introduction I. Judicial Disqualification in American and Traditional Jewish Law A. The American Approach to Judicial Disqualification 1. The Underlying Goals of American Recusal Jurisprudence 2. Grounds for Disqualification in American Law a. Bias and the Appearance of Bias b. Financial Interest c. Familial Relationships d. Bribes and Gifts e. Prior Knowledge f. The Due Process Clause B. The Traditional Jewish Law of Judicial Disqualification and Recusal 1. Litigation, Courts, and Judges in the Halachic System: The Jurisprudential Aims of Jewish Disqualification Law 2. Grounds for Disqualification and Recusal in Jewish Law a. Disqualification to Maintain the Institutional Integrity of the Court i. Financial Interest ii. Familial Relationships iii. Bribes, Gifts, and Personal Favors iv. Advisory Opinions b. Voluntary Recusal to Preserve the Professional Integrity of the Judge i. Bias and the Appearance of Bias ii. Prior Knowledge c. Judges' Extralegal Duty to Treat Litigants Equally II. The American and Halachic Doctrines of Judicial Removal: A Comparison III. Moving in a New Direction: Toward a Duty-Focused Recusal Jurisprudence A. Problems with the Current American Doctrine 1. The Failure of Ad Hoc and Conclusory Recusal Doctrines to Adequately Protect Litigants from Biased Judgments 2. The Failure of Expansive Disqualification Doctrines to Promote Public Confidence in the Justice System 3. The Failure of Modern Recusal Law to Engender an Integrious Judiciary B. Duty-Focused Disqualification: Some Proposals 1. Thinking About the Roles of Courts and Judges in the American System of Adjudication 2. Curtail the Role of Mandatory Disqualification in Eliminating Judicial Bias 3. Expand Judges' Professional Obligation to Voluntarily Recuse 4. Ensure Sound Legal Judgments and Promote Integrious Judging Conclusion One who grabs too much has not grabbed anything, but one that grabs just a little has surely grabbed that much.

--Babylonian Talmud, Yoma 80a

INTRODUCTION

The United States Supreme Court's ruling that West Virginia Supreme Court Justice Brent Benjamin's decision not to recuse himself from a case involving a major donor to his judicial election campaign violated Due Process (1) sparked a storm of interest in the (in)adequacy of the judicial disqualification system. (2) Contemporary recusal law makes conclusory determinations of actual or apparent judicial bias, resulting in an inconsistent doctrine that allows dishonest judges to resist recusal and supplant litigants' legal rights in favor of their own personal agendas. (3) The current approach also erodes public confidence in the justice system by under and over-enforcing bias-based recusal, (4) and its focus on top-down mandatory disqualification fails to adequately encourage judges to be personally and professionally integrious. (5)

This Note suggests that these problems might be mitigated by comprehensively rethinking our approach to judicial disqualification based on halacha, traditional Jewish law. (6) Halachic recusal law offers an alternative to the current American approach, a jurisprudence that is grounded in courts' and judges' personal and professional duties, and which empowers jurists to develop their own integrity by limiting mandatory disqualification and relying instead on judges' duty-consciousness and self-disciplining decisions to voluntarily recuse. (7)

Part I of this Note reviews the jurisprudential underpinnings and substantive rules of American and traditional Jewish disqualification law. Part II briefly compares these two systems, highlighting the principle differences between the American and halachic approaches to recusal, which stem from these doctrines' respective foundations in rights-based and duty-focused jurisprudence. Part III develops a duty-focused alternative to contemporary recusal law by first highlighting some deficiencies in the current system, thereby demonstrating the need for reform, (8) and by then reconceptualizing judicial recusal based on Jewish law's moralizing, duty-oriented approach to removing judges and promoting judicial integrity. (9)

1. JUDICIAL DISQUALIFICATION IN AMERICAN AND TRADITIONAL JEWISH LAW

   This Part provides necessary background for considering the relative merits of contemporary American and traditional Jewish recusal law by explaining the jurisprudential underpinnings and substantive doctrines. Section I.A. discusses the American law of judicial disqualification, and Section I.B. lays out the basic contours of the halachic approach to removing judges.

   1. The American Approach to Judicial Disqualification

      This Section discusses the contemporary American approach to judicial disqualification. Section I.A.1 explores the two primary objectives of modern recusal doctrine: protecting litigants' rights against biased rulings, and promoting public confidence in the justice system. Building on this framework, Section I.A.2 summarizes the substantive grounds for a judge's removal under current federal, state, and American Bar Association rules.

      1. The Underlying Goals of American Recusal Jurisprudence

         Contemporary judicial disqualification law is built on a dual concern for protecting the rights of litigants in individual cases and with preserving public confidence in the court system generally. Litigants are entitled to a court ruling based on the legal merits of their case rather than extraneous, non-legal factors. (10) When judges rule based on their personal values, their decisions subvert litigants' legal rights and amount to a miscarriage of actual justice. (11) Judges must therefore interpret and apply the law without regard for personal preferences or value judgments; (12) they must decide each case impartially, preserving our justice system as one "of laws and not of men." (13) Disqualification law attempts to protect litigants' legal dues from biased rulings by removing judges from cases that implicate their personal preferences. (14) Thus, the goal of judicial "impartiality is not an end in itself. It is an instrumental value designed to preserve a different end altogether: the rule of law.... [T]he ultimate goal is to enable judges ... to resolve disputes between parties on a case-by-case basis according to the applicable facts and law...." (15)

         In addition to protecting litigants' rights from actual injustice, disqualification law seeks to promote confidence in the court system by avoiding even the appearance of judicial injustice. The efficacy of our courts depends on society's willingness to submit disputes to them and accept their rulings. (16) If the public perceives the justice system as corrupted by biased judges deciding cases based on their personal preferences, "the moral authority of the courts is critically undermined," (17) hampering their effectiveness. Judges must therefore not only be, but must also appear to be unbiased. (18) The Supreme Court recognized this principle in Offutt v. United States, noting that "justice must satisfy the appearance of justice." (19) Modern recusal jurisprudence addresses this concern by disqualifying judges not only when they are biased, but even when they merely appear partial. (20)

         This heavy focus on eradicating bias is a relatively new development in recusal jurisprudence. At common law, judges were only disqualified for being a party to a case by virtue of their having some interest in the outcome, (21) and early American recusal law tracked this English doctrine. (22) In the early twentieth century, however, perhaps in response to changing perceptions and new problems related to judicial impartiality, new legislative initiatives began to focus disqualification practice on actual and apparent judicial bias. (23) Recusals are currently governed by 18 U.S.C. [section][section] 144 and 455, (24) by the American Bar Association's Model Code of Judicial Conduct, (25) which has been adopted in some form by forty-nine States, (26) and by the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution. (27)

      2. Grounds for Disqualification in American Law

         Judges may be removed in a variety of circumstances, including where they have a financial stake in a case, are closely related to parties or attorneys, accept bribes or gifts from parties or attorneys, or have extra-judicial knowledge about a case. These substantive grounds for removal are not disqualifying per se; they are indicia of actual or apparent judicial misconduct. (28) As Professor Leubsdorf notes, "disqualification law is clearly directed at the likelihood of warped judgment, with a judge's financial interest or familial stake in the case as just one circumstance from which to infer such a likelihood." (29) Thus, in Tumey v, Ohio, (30) the Supreme Court disqualified a town mayor from serving as a municipal judge, in part, because he would receive additional compensation only if he convicted the defendants appearing before him. The Court did not find that the mayor's obvious interest in the outcome of each case was disqualifying per se. Instead, the Court disqualified the mayor because his interest threatened his impartiality, making it unlikely that he would be able to "hold the balance nice, clear, and true." (31)

         This Section reviews the substantive grounds for disqualification, which the law considers indicative of actual or apparent judicial bias. Section I.A.2.a. considers disqualification based on a judge's manifesting actual or apparent bias. Section I.A.2.a. discusses when judges might be disqualified for a bias resulting from a financial interest in a case; Section I.A.2.c. for a familial relationship to litigants or attorneys; Section I.A.2.d. for accepting bribes or gifts from parties appearing in court; and Section I.A.2.e. for possessing extra-judicial knowledge about a case.

         a. Bias and the Appearance of Bias

         A judge's impartiality is the most "fundamental" and "self-evident" ground for a fair judicial system. (32) In...