The Importance of an Objective Appearances Standard for Judicial Recusal

    The facts of the Hood case (Texas death penalty), which has been discussed earlier, illustrates the importance of an objective and broadly-phrased appearances standard for judicial recusal.  It is not unlikely that the judge in that case would be satisfied that she had been able to preside over Mr. Hood’s case with complete impartiality.

    Moreover, suggestions that such a standard should not be used in the ABA’s Model Code of Judicial Conduct or in statutes like 28 U.S.C. 455(a) fail to recognize that constitutional due process requires that result.  It would be anomalous if statutory and ethical standards were less demanding than what is required by due process.

    The U.S. Supreme Court has held that the Due Process Clause of the Constitution requires that a judge “not only must be unbiased but also must avoid even the appearance of bias.”  See, e.g., Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 150, 89 S.Ct. 337, 340 (1968).  For example, the U.S. Supreme Court reversed a conviction on the grounds of due process because a state judge had held a defendant guilty of contempt of a grand jury that had been presided over by the same judge.   In re Murchison, 349 U.S. 133, 75 S.Ct. 623 (1955).  As noted by the dissent in that case, the state judge had had no pecuniary interest in the matter, nor had there been any contention that the judge had become embroiled in the matter, or that he had been biased in any way.  349 U.S. at 141, 75 S.Ct. at 623 (Reed, J., dissenting).  Nevertheless, the Supreme Court reversed the conviction, holding that “to perform its high function in the best way, ‘justice must satisfy the appearance of justice.’”  349 U.S. at 136, 75 S.Ct. at 625, quoting Offutt v. United States, 348 U.S. 11, 14.

    Also, the use of a disqualification rule based on the appearance of impropriety has important practical advantages.  First, some lawyers are reluctant to make disqualification motions for fear of antagonizing judges, particularly those before whom they expect to appear again.  The professional obligation to seek disqualification in appropriate cases is made easier when the lawyer need not accuse the judge of bias in fact.  Rather, the lawyer can acknowledge that the particular judge is “pure in heart and incorruptible,” but that he is nevertheless subject to disqualification on an objective, appearances standard.

    Also, some judges are reluctant to recuse themselves out of concern that to do so would be an embarrassing admission of a disabling bias.  The appearances standard, by disqualifying even the judge who is “pure in heart and incorruptible,” avoids this concern as well.  In addition, it can be difficult to act impartially as a judge in one’s own case.  An objective appearances standard, and the elimination of the duty to sit, make it less likely that a judge will be able to successfully avoid recusal when it is warranted.

    A related problem arises when a judge’s decision not to recuse himself is reviewed by fellow judges in an appellate court or by a colleague on the same bench.  A desirable collegiality among judges can be adversely affected by a decision by one judge that another is biased, or (as a federal district judge was called upon to decide in Liljeberg v. Health Services Administration) that a fellow judge had not really forgotten information that he claimed to have forgotten.  Also, the Supreme Court recognized a further concern in Liljeberg, 486 U.S. at 865, n.12, 108 S.Ct. at 2205, n.12:

        “A [favorable] finding by another judge – faced with the difficult task of passing upon the integrity of a fellow member of the bench ... is unlikely to significantly quell the concern of the skeptic.”

That is, despite the fact that a fellow judge has accepted the word of a judicial colleague that the latter has acted impartially, a reasonable member of the public might nevertheless question the judge’s impartiality and, therefore, the fairness of the administration of justice.

    For these reasons, a broadly phrased appearances standard, as in 28 U.S.C. 455(a) and in the ABA’s Model Code of Judicial Conduct,  has sound practical justification, as well as assuring that justice will not only be done but that it will appear to have been done.

Comments

[Patrick S. O'Donnell]

Monroe (if I may; that is, with all due respect),

While I've yet to read Sarah's article (http://www.law.ua.edu/lawreview/articles/Volume%2059/Issue%201/Cravens.pdf), I'm very grateful for your explanation of why "a broadly phrased appearances standard, as in 28 U.S.C. 455(a) and in the ABA’s Model Code of Judicial Conduct, has sound practical justification, as well as assuring that justice will not only be done but that it will appear to have been done," if only because it well articulates reasons that support my intuitive attraction to this standard. I think the fact that Judge Alex Kozinski declared a mistrial and recused himself likewise well illustrates the proper use and vindication of this standard, for here too one might conclude that, even if Kozinski broke no laws, which it is clear he did not, "a reasonable member of the public might nevertheless question the judge’s impartiality." As Laurie Levenson--a Loyola Law School professor and former federal prosecutor in Los Angeles--said in the LA Times article about the recusal from the obscenity trial, "The real problem is that once this [i.e., the sexually explicit and crudely humorous material on his website] came to light, it made people question whether he was the right judge to handle the case," irregardless of the circumstances that led to the knowledge and publicity of the material.

[Monroe Freedman]

Patrick,
I take the point of your parenthetic.
As a certified Old Person, I hope I will be forgiven for a curmudgeonly moment.

[Patrick S. O'Donnell]

Monroe,

Your legal wisdom is, in any case, distinguishable from such certification (at best the latter is a necessary but not sufficient condition for the former). And now that I've been on the planet for a bit more than half a century (as my doctor was quick to remind me), I look forward (and I confess: unapologetically) to more than a few curmudgeonly moments myself!