The article focuses on a troubling aspect of contemporary judicial morality.

Impartiality—and the appearance of impartiality—are the foundation of judicial decision-making, judicial morality, and the public’s trust in the rule of law. Recusal, in which a jurist voluntarily removes himself or herself from participating in a case, is a process that attempts to preserve and promote the substance and the appearance of judicial impartiality. Nevertheless, the traditional common law recusal process, prevalent in many of our state court systems, manifestly subverts basic legal and ethical norms.

Today’s recusal practice—whether rooted in unintentional hypocrisy, wishful thinking, or a pathological cognitive dissonance— has been habitually relegated to the periphery of our administration of justice when its rightful place should be its nucleus. Impartiality of judgment and the integrity of the judicial process are critical weaknesses of a recusal regime that vests virtually unfettered discretion in a jurist to conduct an ad hoc self-assessment of his or own impartiality, i.e., the paradox of biased impartiality. In such circumstances, actual and apparent impartiality of a jurist, fortified by the mechanical application of the common law’s presumption of judicial impartiality, is misguided and delusional.

The article opens with a brief overview of the historical development of recusal principles and judicial ethical codes, followed by an exposition of recusal theory and practice in a representative state (Pennsylvania). The background of ethical principles and practice culminates in a specific recusal proposal (a potential judicial rule or statute) based on over-arching categorical and procedural imperatives that can guide recusal reform efforts. The article, thus, goes well beyond the many good, but general, commentaries on recusal and fills the void of a prescribed process. The detailed recusal procedures represent an amalgamation of best practices urged by commentators and implemented, in varying degrees, in some states. The proposal is both practical and workable, applicable to elected and appointed judiciaries, and pertinent to the disturbing specter of judges’ increasing reliance on money in judicial campaigns.

Thus, the article seeks to highlight the importance of specific procedural processes to meaningfully promote judicial fairness and ethical conduct in substance and appearance.



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