On the Problem of Appearances

What a week to start blogging.  I recently wrote this article arguing against the use of appearance-based standards in the recusal context, and now this story from the L.A. Times about Judge Kozinski’s personal website and whether he should recuse himself from presiding over an obscenity trial presents a great scenario for getting to the heart of why I find appearance-based recusal analysis unsatisfying.

The L.A. Times story cites Prof. Stephen Gillers as saying the public could reasonably question Judge Kozinski’s objectivity on the subject matter of the trial, now that the contents of Kozinski’s personal website are publicly known.  Prof. Gillers is perfectly correct about the standard for recusal currently applicable to Judge Kozinski: it is indeed appearance-based.  My response here is therefore only a challenge to the theory behind that current standard: 

If it makes sense to say that Judge Kozinski appears unable to preside impartially over an obscenity trial because he has these pictures on his website, why shouldn’t we also second guess the impartiality of a judge who doesn’t have such pictures on such a website?  Might not that other judge have very strong personal feelings on the other side of the issue? We just don’t know.  Only the judge does, and it doesn’t make sense to me to flip the switch just on these facts alone: there is nothing in the article to suggest that Judge Kozinski has an actual predisposition on the legal issues in the trial, any more than any other judge who either doesn’t have such material on a website or simply isn’t yet publicly known to do so.  (Further stories, by the way, report that the website was maintained by the judge's son and it is unclear who contributed what material, making the appearances yet murkier.) 

Prof. Gillers also raises a point in the L.A. Times article about whether it would be better if judges didn’t reveal their private lives to the public.  I’m not a proponent of anyone going out of his way to reveal his private life to the public, but it strikes me that it doesn’t make sense for judges to hide their personal lives just in order not to upset the public, if the things the public would be upset about actually matter to the judge’s decisionmaking.  The public’s awareness or unawareness of what judges are doing in their private lives shouldn’t be the dispositive factor. 

Judge Kozinski himself once wrote on the appearance of impropriety standard (in this law review article from 2004): “Judicial ethics, where it counts, is hidden from view, and no rule can possibly ensure ethical judicial conduct.”  I’m inclined to agree with him on the first point, and on the second to emphasize that reliance on appearances is particularly ill-calculated to ensure ethical judicial conduct.  Judge Kozinski concludes in that same article: “But, to my mind, we'd all be better off in a world with fewer rules and a more clear-cut understanding that impartiality and diligence are obligations that permeate every aspect of judicial life--obligations that each judge has the unflagging responsibility to police for himself.”  If we’re relying on appearance standards, after all, couldn’t we just as easily say there is the appearance from his law review article that Judge Kozinski feels strongly enough about judging impartially to preside fairly over this trial, as over any other, no matter what he's doing off the bench? 

I don't by any means endorse Judge Kozinski's contribution to this website as appropriate.  I just take the position that appearances won't lead us to any reliable conclusions about whether a judge can preside over a trial or otherwise reach judicial decisions impartially.   

Comments

[John Steele]

Sarah,

I've always found the appearance standard unsatisfying but can't quite conclude we should drop it as to judges. (Thankfully, it's almost completely disappeared in lawyers' codes.)

One problem with the standard: once we start to debate a particular application we necessarily start calling each other unreasonable. The debate gets personal, ad hominem, etc.

Another problem: only some appearances count Could a reasonable person doubt the judge's impartiality if he's a law-and-order, Republican-appointed, former prosecutor known for being harsh on crime? You bet. Same thing with judges who have more liberal backgrounds. But of course we couldn't possibly let that be the standard. So we say publicly that the judge will be impartial but when we counsel our clients behind closed doors we quite rightly put enormous weight on the judge's personal biases.

As for the "hide it, don't reveal it" line of advice, you're right about the paradox. It suggests that believing in the system matters more than pursuing a perhaps unattainable level of perfection in the system. So, when we repeat that line of advice, it's one of the rare times when the myth of justice reveals itself.

And yet, I would vote to leave the appearance standard in the judicial code.

[Patrick S. O'Donnell]

"If it makes sense to say that Judge Kozinski appears unable to preside impartially over an obscenity trial because he has these pictures on his website, why shouldn’t we also second guess the impartiality of a judge who doesn’t have such pictures on such a website?"

Well, the second case gives us no prima facie reason to call into question a our presumption(s) (presumption favoring the 'usual and the natural' state of affairs), while Judge Kozinski has now provided us with evidence to question the presumption, even if it is not conclusive. An appearance-based standard of recusal strikes me as rather, and appropriately, strict, given what judges do, and not at all unfair or unreasonable if judges know fully well that it is indeed the operable standard. It's their lucid knowledge of the standard *and" their subsequent failure to meet it, which is troubling.

I think you're perhaps arguing against a strawman in stating "reliance on appearances is particularly ill-calculated to ensure ethical judicial conduct," as I doubt anyone truly believes it "ensures" ethical conduct, rather, and only, that it "encourages" ethical conduct insofar as it is a reminder that "appearances" affect our presumptions (entrench or corrode them). It's analogous to etiquette or good manners, which can help habituate a person to virtue and often reflects decent, reliable or good character until such time we have reason to call into question our inference or judgment of same.

That said, I would not necessarily find an appearance-based standard as permitting in all cases definitive or conclusive findings that warrant recusal. Nevertheless, it seems recusal at least allows us to retain some measure of confidence in our judgment that an appearance may be the proverbial tip of the iceberg or the precipitous first step of a slippery slope. Judges are, rightly, I think, held to higher and more stringent standards than we would find applicable outside their profession.

Reliance on rules and strict standards arises out of experiences in which impartiality and diligence were not routinely respected or observed and thus serves as an explicit and public reminder to all parties about the value we place on impartiality and diligence and what signs we've put in place to signal the possibility that fidelity to such norms *may" be in danger. In such cases, the appearance of impropriety would seem to suggest we now shift the burden of proof, as a reason has arisen to question our prior presumption.

[Patrick S. O'Donnell]

I might have mentioned I couldn't read your article as I don't have access to Westlaw, so I don't know if you addressed some of the points I raised there.

[Sarah Cravens]

Yes, sorry about the Westlaw link - unfortunately, the copyright agreement with the journal did not permit posting the as-published version on SSRN.

I agree to a certain extent with the idea that we don't have a reason to question the person who has no such website or isn't known to, so it would be inefficient to delve into that in any given case, but that doesn't stop me thinking that appearance standards are far too imprecise a measure of anything "actual" to make for a meaningful standard. It's the chance of what we know and what we don't know that bothers me, and the suggestion that it would be better if judges just kept quiet about it and then all would be well. It wouldn't all be well, and we don't know that it's the things we think we see, or the things we choose to focus on, that actually matter to the judge's decisionmaking. It's the imprecision and the chance that get under my skin here. That's why I'd rather we first of all put it to the judges as to whether they believe they can be objective, and then look at the decisions they make to see if they are legitimate in their legal reasoning.

While I agree with you that it's not a good indicator of Judge Kozinski's judgment in general that he clearly knows about the appearance standard and still took the risk of behaving in a way that if publicly known might create such an appearance, doesn't that just point out the basic problem here that what we're worried about is not what IS going on, but what APPEARS to be going on? He seems to be saying he's sorry anyone ever found out about it. Gillers seems to be saying it would be better if judges kept their private lives under better wraps. I'm just saying we'll never know what's really going on behind the judging, so maybe we should focus more on the substance of the reasoning the judges provide for the actual decisions that they make, and if there is a legitimate legal basis for the decisions, be done with it.

I'm not unsympathetic to the idea that judges hold positions of great authority and therefore ought to be held to high standards - I just don't think this standard is one that works all that reliably.

[Patrick S. O'Donnell]

By the way, Kaimipono Wenger has a post on the good judge's apparently well-known viewing habits ('Kozinski's web-browsing habits have long been a source of irritation.') over at Concurring Opinions today: http://www.concurringopinions.com/archives/2008/06/judges_gone_wil.html#more

[Sarah Cravens]

I found a pdf of my recusal law review article to link to, so have fixed the link in the original post.

[Becky]

Some would say the very fact that Judge Kozinski was presiding over this particuar trial created an appearance problem. His libertarian, pro-First Amendment take is well known. But actually, I think everyone agreed, that is what made it interesting that he was presiding over the trial--unless there was some pretty compelling evidence no one is going to claim that Kozinski is a censor or First Amendment basher.

Is the appearance of impartiality made worse because he was found to be in possession of some adolescent smutty material--which clearly is not legally obscene?

As you have correctly pointed out, this situation does illustrate the problem with the appearance standard. If a judge comes to the bench through the prosecutor's office--that is an appearance of impartiality. But, anyone who has ever practiced knows that is not the case--former public defenders can be hanging judges who seemingly forget that the Fourth Amendment means anything at all--or so it seems to the criminal defendant.

Judges are going to have a past, have opinions, and even expressed those opinions (both on and off the bench)--appearances do not insure impartiality. The only thing that does that is integrity--and intellectual honesty--and as Judge Kozinski pointed out--no rule can quantify that quality.

[Patrick S. O'Donnell]

Thanks for making your article available Sarah, I look forward to reading it (i.e., I'm open to persuasion).