Presidents, governors, and mayors are not expected to be “impartial.” Neither are members of Congress, state legislatures, and city councils. To the contrary, their authority to govern derives, in some sense, from the partiality they show their constituents, who have elected them for the express purpose of championing the policy preferences they favor. In these contexts, voters essentially throw their support behind advocates of a sort.
Judges, in contrast, are expected to interpret and apply the laws that officials in the other branches of government make and execute, without regard to their own predilections or (in states that elect their judges) the predilections of those who voted them into office. For judges, in other words, their authority to govern turns on their impartiality. Indeed, “to decide impartially” has been a defining feature of the judicial role dating back to Socrates; the Supreme Court has held that litigants have a due process right to an impartial judge; and the duty to “act at all times in a manner that promotes public confidence in the . . . impartiality of the judiciary” enjoys pride of place at the front of codes of judicial conduct across the state and federal systems. We want the same thing in judges that we want in umpires: an unbiased eye overseeing the game. And so, when legal ethics scholar Cassandra Robertson writes that “judicial legitimacy rests on the perception of judicial impartiality,” I’m on board.
Just as judicial legitimacy depends on judicial impartiality, judicial impartiality depends on judicial disqualification. Of course, a variety of other mechanisms help preserve and protect judicial impartiality: We select judges with an eye toward their impartial judicial temperament; we obligate judges to take an oath in which they swear to administer justice impartially; we subject judges to discipline for violating codes of conduct that require them to “perform all duties of judicial office fairly and impartially”; and, in extreme cases, we remove them from office when partiality manifests as corruption. But when it comes to preventing judges from presiding over cases in which their impartiality is in doubt, disqualification is the first line of defense.
Disqualification and Ethics
Disqualification has an ethical dimension. Disqualification rules are embedded in codes of judicial conduct that regulate judicial ethics and specify the duties of a good judge. But failure to recuse when required is usually a matter of honest error and is treated as an ethical lapse culminating in discipline only when the failure is willful—that is to say, when the judge knew or clearly should have known that recusal was necessary but did not recuse. Disqualification issues typically arise in the context of a particular case and focus less on the ethics of the judge per se than on the procedural right of litigants to a fair proceeding. Judicial disqualification thus has a procedural dimension too, which helps to explain why disqualification principles frequently find their way into procedural statutes and rules. For litigants, legitimacy depends on impartiality, and impartiality depends on some way to challenge it; and so we put in place procedures that allow parties to seek the disqualification of judges whose impartiality they question.
Disqualification rules, however, are not just about regulating the ethics of an individual judge or preserving the procedural rights of the parties in litigation. They are also about promoting public confidence in the judiciary. Thus, to the extent that disqualification rules aim to preserve the faith of the body politic in the judiciary and its impartial administration of justice, disqualification occupies a political dimension too.
In the Wild West of this political dimension, court critics point to social science data and anecdotal observations in support of the proposition that judicial impartiality is a myth, if not a sham or a lie. Court detractors argue that judges may claim to set their prejudices aside and impartially uphold the law, but that, in reality, the decisions judges make are influenced by their ideological predilections and sometimes by their race, gender, religion, age, ethnicity, and innumerable other idiosyncratic factors. Judges may be umpires who call balls and strikes, but as one writer paraphrased the views of two major league umpires, calling balls and strikes “is a kind of political enterprise, an activity requiring will and conscience, and a point of view.”
Superficially, at least, disqualification would appear helpless to address this concern. After all, if judges are categorically biased by their identities as individuals, then the rules should either disqualify no one (effectively looking the other way) or disqualify everyone (shuttering the courthouse doors).
Or maybe not. There is a difference between bias and influence. It is the difference between a judge’s personal perspective closing the judge’s mind to the facts and law, on the one hand, and informing the judge’s understanding of what the facts and law are, on the other. In hard cases, when the facts are uncertain or the law is indeterminate, the choices judges make require the exercise of judgment and discretion—judgment and discretion influenced by the judge’s background, education, experience, common sense, judicial philosophy, and world view.
The line that separates permissible influence from disqualifying bias is inherently indistinct. And given human nature, perfect impartiality is unattainable: People (and the last time I checked, judges are people) are not indifferent creatures. The most we can strive for is a judge who is impartial enough for government work: who internalizes impartiality norms and strives to stay on the right side of the line in the ethical dimension, who is evenhanded enough to give the parties a fair shake in the procedural dimension, and who struggles to constrain personal predilections sufficiently to preserve the judiciary’s legitimacy in the political dimension.
The Three Ways Disqualification Regulates Impartiality
Disqualification rules police judicial impartiality in three ways. The first is by means of default rules that apply to judges who are presumptively deemed too partial to preside when they are confronted with specified conflicts of interest. If, for example, the judge is a close relative of a party to the proceeding, has an interest that could be substantially affected by the outcome of the litigation, or has personal knowledge of disputed facts in the case, the judge must withdraw regardless of whether the judge could, in fact, disregard those conflicts and rule impartially. One study indicates that judges are generally comfortable with these conflicts rules, which establish bright(ish) lines that offer judges relatively clear guidance on when they must recuse themselves.
Second, in addition to situations in which enumerated conflicts arise, judges must recuse themselves when they have a personal bias concerning a party—a subjective standard triggered by actual prejudice. Most people regard their own views as unpolluted by the biases that afflict others. One study asked a group of judges whether they thought that they were better able to avoid bias than most of their peers, and 97 percent reported yes. The frequency with which judges acknowledge their own biases and grant requests to disqualify on that basis is therefore unsurprisingly low.
Third is the catchall. In cases in which judges have neither a disqualifying conflict of interest nor a personal bias, they must still recuse themselves when their “impartiality might reasonably be questioned.” This catchall made its debut in the ABA’s first Model Code of Judicial Conduct, promulgated in 1972, and Congress added it to the federal disqualification statute in 1974.
Over the course of the two centuries prior to the catchall’s adoption, Congress had, in effect, been playing an endless game of whack-a-mole: Judges would pop up and preside in the teeth of a conflict of interest that the disqualification statute did not specify; Congress would address the new conflict by adding it to the list of disqualifying scenarios, which solved the problem until the next new conflict popped up. Because it was impossible for Congress to anticipate every scenario in which conflicts might arise, judges were perpetually and lawfully presiding over cases in which the public had reason to doubt a given judge’s impartiality, to the detriment of the judiciary’s legitimacy. And so congressional sponsors of the 1974 amendment added the catchall for the explicit, political-dimension purpose of promoting public confidence in the courts.
The catchall is an objective, appearance-based standard that calls upon judges to recuse themselves from proceedings in which a reasonable, non-judge observer, fully informed of the circumstances, would doubt the judge’s impartiality. Because the enumerated conflict scenarios are relatively straightforward in application, and disqualification for personal bias is a rarity, most disqualification controversies arise in the context of applying the catchall.
Controversies in cases applying the catchall could be diminished, if not eliminated, if judges erred on the side of caution and recused themselves at the first whiff of alleged partiality. There are, however, at least five constraints on routine disqualification: First, as previously noted, judges, rarely perceive themselves as biased and are naturally inclined to regard others’ perceptions to the contrary as unreasonable or ill-informed. Second, judges take an oath to be impartial that gives rise to a presumption of impartiality, and judges may look uncharitably on efforts to rebut that presumption with accusations implying that they have violated their oath. Third, and in a related vein, codes of conduct obligate judges to recuse sua sponte when the rules require disqualification; because disqualification rules occupy an ethical as well as a procedural dimension, when judges do not recuse on their own initiative and parties ask them to do so, judges may take umbrage at the implication that they have neglected their ethical responsibilities. Fourth, litigants can and do abuse disqualification rules in attempts to remove judges who, though impartial, are unlikely to support the litigants’ claims on the merits, which can lead judges to default to the suspicion that disqualification requests are strategic and meritless. Fifth, and finally, judges are subject to a countervailing ethics rule that discourages them from shirking their judicial duties and leaving the judicial workforce shorthanded, by obligating them to preside when not disqualified, which pushes back against the impulse to err on the side of over-disqualification.
These constraints predispose judges to interpret the catchall more parsimoniously than might the public for whose benefit it was designed, which threatens to undermine the catchall’s purpose. If judges and the public are at odds over when a judge’s impartiality might reasonably be questioned, then the catchall could damage, rather than improve, the judiciary’s legitimacy. This holds particularly true if the problem is not occasional and isolated but chronic and widespread.
To some extent, this problem has been averted by more than half a century of interpretive precedent. The textual weave of the catchall may be open enough to tolerate legitimacy-threatening divergences of view, but appellate courts have added to the thread count by providing concrete guidance on the circumstances in which disqualification is necessary. Thus, for example, it is generally settled that a judge must recuse himself or herself from cases in which the judge is negotiating for post-judicial employment with a party or lawyer in the case before the judge; a lawyer who enters an appearance is currently representing the judge personally in an unrelated matter; or the judge is in a business relationship with a party or lawyer in the proceeding. Charles Gardner Geyh, James Alfini & James Sample, Judicial Conduct and Ethics §§ 4.07, , 4.14 (6th ed. 2020) [hereinafter Judicial Conduct]. In this way, the catchall enables appellate courts to breathe meaning into its terms by expanding the list of disqualifying conflicts of interest on an as-needed basis, to the benefit of the judiciary’s perceived legitimacy.
Ambiguities at the Margins
But the catchall is, of necessity, phrased broadly enough to be a catchall. And that means that there will be ambiguities at the margins. Even when courts agree that a given unenumerated conflict of interest can be serious enough to call a judge’s impartiality into question, the circumstances in which that conflict is triggered may still require case-by-case line drawing. Thus, for example, courts have ruled that judges must recuse themselves when the judge is personally too close to a party or lawyer or when a party or lawyer has lent too much financial support to the judge’s election campaign—but what is too close or too much is a judgment call that must be decided by judges on an ad hoc basis. Judicial Conduct §§ 4.07, 4.16.
Ambiguities in the application of the catchall also arise in the context of disqualifying judges for the appearance of bias. These cases do not feature conflicts of interest in which a particular scenario pits the judge’s interests against the interests of a litigant in ways that presumptively call the judge’s impartiality into question. Rather, when the appearance of bias is at issue, disqualification turns on whether things the judge said or did, on or off the bench, are sufficiently indicative of prejudice or a closed mind to call the judge’s impartiality into question. Applying this inherently amorphous standard is further complicated by the so-called “extrajudicial source rule,” which proceeds from the premise that it is not indicative of bias for judges to comment favorably or unfavorably on what they learn in the course of court proceedings about the parties, witnesses, or evidence. Evidence of reasonably perceived bias must therefore derive from an extrajudicial source (which can sometimes be inferred from in-court comments, such as slurs indicative of preexisting racism, homophobia, or misogyny) except in extreme cases, in which the judge’s comments in court reflect, in the Supreme Court’s words, “such a high degree of favoritism or antagonism as to make fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555 (1994); Judicial Conduct § 4.07.
In close cases, then, deciding whether a judge’s impartiality might reasonably be questioned under the catchall is a judgment call, and parties who lose those judgment calls will disagree and be disappointed. But losing, by itself, does not destroy litigant confidence in the legitimacy of the courts. Psychologist and law professor Tom Tyler has shown that litigants will accept adverse outcomes as legitimate if they feel that they have been treated fairly in the litigation process. The capacity of disqualification rules to preserve the perceived impartiality (and so the legitimacy) of the courts, then, may have less to do with uncertainties surrounding the scope of the substantive disqualification standards than with the perceived fairness of the process by which those standards are applied. And here is where two related problems arise.
The Problem with Self-Disqualification
First, the disqualification process over-relies on self-disqualification. In most jurisdictions, when a party seeks the disqualification of a trial judge, the authority to decide whether the rules require disqualification is vested in the judge whose disqualification is sought. On high courts, with rare exception, the individual justices have the first and final say on their own disqualification. Self-disqualification is problematic for several reasons: (1) Psychological science tells us that people have difficulty detecting their own biases and appreciating how their conduct is perceived by others; (2) because judges must recuse on their own initiative when circumstances warrant, by the time a party asks the presiding judge to recuse, the judge may have decided against the request before the party has been heard; and (3) the judge may take offense at the allegation that he or she is, or appears to be, less than impartial and may struggle to evaluate the issue with sufficient detachment.
The oldest disqualification rule in the book dates back to Dr. Bonham’s Case, in 1609, when Sir Edward Coke ruled that “no man shall be the judge in his own case.” And yet, that principle is ignored every time a judge adjudicates the issue of his or her own impartiality. This point is not lost on the public, over 80 percent of which thinks that disqualification requests should be decided by a different judge.
Second, the standard of review on appeal is highly deferential to the determinations of the trial judge. Most jurisdictions limit reversal of non-disqualification to circumstances in which the trial court abused its discretion or reached a conclusion that was “clearly erroneous.” A respectful standard of review makes sense in a host of settings where the trial judge’s familiarity with facts adduced at hearings with live witnesses warrants the deference of an appellate court, which is limited to a paper or electronic record. But in the context of judicial disqualification, giving the benefit of the doubt to a trial judge’s self-assessment of being as impartial as the day is long is akin to deferring to the fox’s assurance that all is well in the henhouse.
If one is looking for ways to improve the capacity of disqualification to police impartiality and promote judicial legitimacy in a skeptical age, procedural reform may thus be a good place to start. The possibilities include the following.
Limit the role of the subject judge: In Congress, the Senate Judiciary Committee recently held hearings on the 21st Century Courts Act of 2022, while the House Judiciary Committee approved the Supreme Court Ethics, Recusal, and Transparency Act of 2022, both of which make provision for disqualification determinations to be made by judges other than the one whose impartiality is at issue. A number of states have adopted similar provisions. In these jurisdictions, the subject judge retains the authority to recuse upon request, but if the subject judge declines, the request is transferred.
Establish peremptory challenge procedures: Around 20 states afford parties an automatic, one-time opportunity to request a change of trial judge at the outset of the proceedings, which spares litigants the risk of alienating their presiding judge if their request to disqualify is denied. To reduce the risk of peremptory challenge procedures resulting in workload imbalances among the affected judges, non-random case reassignment procedures can help to preserve caseload parity.
Normalize disqualification practice: Disqualification practice is often truncated, owing presumably to the inherent awkwardness of a proceeding in which the judge is, in effect, on trial. Standard motions practice, which affords both parties an opportunity to submit points and authorities in support of their respective positions, followed by a hearing and a ruling accompanied by a reasoned explanation, is frequently bypassed. The net effect is that a judge’s often-unexplained rulings are consigned to a black box, unilluminated by the usual rigors of the adversarial process. To no small extent, instituting procedures whereby disqualification requests are heard by a different judge would facilitate the normalization of disqualification practice, because judges unfamiliar with the circumstances would be likelier to inform themselves via the adversarial process and report on the result of their inquiry.
Revisit standards of appellate review: A limited number of jurisdictions subject non-disqualification to de novo review on appeal. Retaining a more deferential standard of review makes sense if the ruling on appeal is issued by a disinterested judge whose impartiality is not in dispute. But in jurisdictions that retain self-disqualification, imposing de novo review is a way to counter the legitimacy-threatening practice of trial judges grading their own homework.
Establish procedures for high court disqualification: Some jurisdictions (such as Texas) have procedures whereby a high court judge’s non-disqualification is subject to review. In most states, however, supreme court justices have the first and final say over their own disqualification, which recently gave rise to the startling spectacle of a North Carolina Supreme Court justice presiding over a case in which his father was the named defendant. N.C. State Conference of the Nat’l Ass’n for the Advancement of Colored People v. Moore & Berger, No. 261A18-3 (Jan. 7, 2022) (Berger Jr., Assoc. J.). The son’s optimistic assessment that a reasonable observer would not doubt his ability to rule impartially on Dad’s case, because Dad was appearing in his “official capacity” as a legislator, was not subject to review by anyone outside of the family. If state high courts establish procedures to avoid embarrassments of this kind, they may also be well advised to create processes for the replacement of disqualified justices to avert the risk of tie votes (which many jurisdictions do not currently have in place).
Public confidence in the institutions of government is at a low ebb, and skepticism of the judiciary and its impartiality is on the rise. Judicial disqualification has long served as a legitimacy-promoting bulwark against the threat of judges presiding in the teeth of bias or conflicts of interest that could undermine the perceived impartiality of the courts. With faith in an impartial judiciary on the wane, revising disqualification practice and procedure would be a productive next step to reassure both litigants and the public that disqualification rules are enforced in a rigorous and evenhanded process.