The Elusive Goal of Impartiality

AuthorDebra Lyn Bassett - Rex R. Perschbacher
PositionJustice Marshall F. McComb Professor of Law, Southwestern Law School. - Professor of Law and Daniel J. Dykstra Chair in Law, University of California, Davis.
Pages181-214
181
The Elusive Goal of Impartiality
Debra Lyn Bassett
Rex R. Perschbacher
ABSTRACT: Over the past ten years, the topic of judicial recusal has
received increased attention in virtually every quarter—in the media, in the
legal commentary, and even in Congress. The reason for this surge in
interest is not due to recent changes in the applicable recusal standards or
enhanced investigative reporting, but rather largely appears to be the result
of inadequate attention to—or perhaps in some cases, arrogance or callous
disregard for—the recusal standards, exacerbated by procedural deficiencies
that prevent the recusal rules from being fully effective. This Article seeks to
identify the flaws with the current approach to judicial recusal, and then
offers a four-step proposal for restoring faith in the judiciary.
I
NTRODUCTION ...................................................................................... 183
I. CAPERTON ............................................................................................... 185
A. THE FACTS ....................................................................................... 185
B. THE CAPERTON MAJORITY .............................................................. 186
C. THE CAPERTON DISSENT ................................................................. 188
II. BASES OF AUTHORITY FOR JUDICIAL DISQUALIFICATION ....................... 189
III. PIECES OF A PUZZLE ............................................................................... 193
A. BRINGING BACKGROUNDS TO THE BENCH .......................................... 193
B. THE RECUSAL STANDARD AND ITS IMPLEMENTATION ......................... 196
1. Word Play ................................................................................ 198
2. Appearances and Public Perception ..................................... 199
3. The Duty To Sit ...................................................................... 202
C. PSYCHOLOGY-BASED ISSUES .............................................................. 203
1. Presenting the Recusal Motion to the Challenged Judge ... 203
2. Self-Perceptions of Impartiality ............................................. 205
IV. PROPOSALS FOR REFORM ....................................................................... 207
Justice Marshall F. McComb Professor of Law, Southwestern Law School.
 Professor of Law and Daniel J. Dykstra Chair in Law, University of California, Davis.
182 IOWA LAW REVIEW [Vol. 97:181
A. THE RECUSAL STANDARD ................................................................. 208
1. “Knowledge of All the Relevant Circumstances Disclosed
by a Reasonable Inquiry” ....................................................... 208
2. Duty To Sit .............................................................................. 210
B. RECUSAL PROCEDURES ...................................................................... 210
1. Peremptory Challenges .......................................................... 211
2. The Use of Alternative or Additional Decision-makers ....... 213
CONCLUSION ......................................................................................... 214
2011] THE ELUSIVE GOAL OF IMPARTIALITY 183
INTRODUCTION
[L]et the suspect judge be removed and one who is not suspect substituted
for him. . . . [I]t is a very fearful thing to litigate under a suspect judge and
very often results in the saddest outcomes.
But there is only one reason to recuse—suspicion, which arises from
many causes . . . .1
The notion of an impartial trial under the direction of an unbiased
judge is a central tenet of our system of justice; indeed, “[a] fair trial in a fair
tribunal is a basic requirement of due process. . . . To this end no man can
be a judge in his own case and no man is permitted to try cases where he has
an interest in the outcome.”2 A judge’s partiality for one party over
another—regardless of the reason—taints not only that particular
proceeding, but the entire judicial system, reducing public confidence in
the courts.3 The significance of impartiality is reflected in the American Bar
Association’s Model Code of Judicial Conduct and the Code of Conduct for United
States Judges, which both set forth a general standard requiring judicial
disqualification4 from any proceeding “in which the judge’s impartiality
1. HENRI DE BRACTON, THE LAWS AND CUSTOMS OF ENGLAND (1270), as reprinted in THE
RESPONSIBLE JUDGE: READINGS IN JUDICIAL ETHICS 278, 278–79 (John T. Noonan, Jr. & Kenneth
I. Winston eds., 2001).
2. In re Murchison, 349 U.S. 133, 136 (1955); see also Aetna Life Ins. Co. v. Lavoie, 475
U.S. 813, 821–22 (1986) (requiring an impartial tribunal for due process).
3. See Republican Party of Minn. v. White, 536 U.S. 765, 793 (2002) (Kennedy, J.,
concurring) (“Courts, in our system, elaborate principles of law in the course of resolving
disputes. The power and the prerogative of a court to perform this function rest, in the end,
upon the respect accorded to its judgments. The citizen’s respect for judgments depends in
turn upon the issuing court’s absolute probity. Judicial integrity is, in consequence, a state
interest of the highest order.”).
4. Although the terms recusal and disqualification frequently are treated as synonyms,
recusal and disqualification traditionally have had different meanings:
Whereas “recusal” normally refers to a judge’s decision to stand down voluntarily,
“disqualification” has typically been reserved for situations involving the statutorily
or constitutionally mandated removal of a judge upon the requ est of a moving
party or its counsel.
. . . In most jurisdictions, however, whatever differences between the terms that
may once have been thought to exist are of little practical significance today. In
fact, in modern practice “disqualification” and “recusal” are frequently viewed as
synonymous, and employed interchangeably.
RICHARD E. FLAMM, JUDICIAL DISQUALIFICATION: RECUSAL AND DISQUALIFICATION OF JUDGES
§ 1.1, at 3–4 (2d ed. 2007) (footnotes omitted); see also John P. Frank, Disqualification of Judges:
In Support of the Bayh Bill, 35 LAW & CONTEMP. PROBS. 43, 45 (1970) (“There is a technical
distinction between disqualification or exclusion by force of la w, and recusation, or withdrawal
at the judge’s discretion, but the latter term is now largely obsolete . . . .”). Traditionally, recusal
has referred to a judge’s discretionary, voluntary decision to step down. FLAMM, supra, § 1.1, at
3 (noting this traditional view); Karen Nelson Moore, Appellate Review of Judicial Disqualificatio n

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