Recovering Judicial Integrity: Toward a Duty-Focused Disqualification Jurisprudence Based on Jewish Law

Article excerpt

Introduction
   I. Judicial Disqualification in American and Traditional Jewish
      Law
      A. The American Approach to Judicial Disqualification
         1. The Underlying Goals of American Recusal
            Jurisprudence
         2. Grounds for Disqualification in American Law
            a. Bias and the Appearance of Bias
            b. Financial Interest
            c. Familial Relationships
            d. Bribes and Gifts
            e. Prior Knowledge
            f. The Due Process Clause
      B. The Traditional Jewish Law of Judicial
         Disqualification and Recusal
         1. Litigation, Courts, and Judges in the Halachic
            System: The Jurisprudential Aims of Jewish
            Disqualification Law
         2. Grounds for Disqualification and Recusal in Jewish
            Law
            a. Disqualification to Maintain the Institutional
               Integrity of the Court
               i. Financial Interest
               ii. Familial Relationships
               iii. Bribes, Gifts, and Personal Favors
               iv. Advisory Opinions
            b. Voluntary Recusal to Preserve the Professional
               Integrity of the Judge
               i. Bias and the Appearance of Bias
               ii. Prior Knowledge
            c. Judges' Extralegal Duty to Treat Litigants
               Equally
 II. The American and Halachic Doctrines of Judicial Removal:
     A Comparison
III. Moving in a New Direction: Toward a Duty-Focused
     Recusal Jurisprudence
     A. Problems with the Current American Doctrine
        1. The Failure of Ad Hoc and Conclusory Recusal
           Doctrines to Adequately Protect Litigants from
           Biased Judgments
        2. The Failure of Expansive Disqualification
           Doctrines to Promote Public Confidence in the
           Justice System
        3. The Failure of Modern Recusal Law to Engender
           an Integrious Judiciary
     B. Duty-Focused Disqualification: Some Proposals
        1. Thinking About the Roles of Courts and Judges in
           the American System of Adjudication
        2. Curtail the Role of Mandatory Disqualification in
           Eliminating Judicial Bias
        3. Expand Judges' Professional Obligation to
           Voluntarily Recuse
        4. Ensure Sound Legal Judgments and Promote
           Integrious Judging
Conclusion

One who grabs too much has not grabbed anything, but one that grabs just a little has surely grabbed that much.

--Babylonian Talmud, Yoma 80a

INTRODUCTION

The United States Supreme Court's ruling that West Virginia Supreme Court Justice Brent Benjamin's decision not to recuse himself from a case involving a major donor to his judicial election campaign violated Due Process (1) sparked a storm of interest in the (in)adequacy of the judicial disqualification system. (2) Contemporary recusal law makes conclusory determinations of actual or apparent judicial bias, resulting in an inconsistent doctrine that allows dishonest judges to resist recusal and supplant litigants' legal rights in favor of their own personal agendas. (3) The current approach also erodes public confidence in the justice system by under and over-enforcing bias-based recusal, (4) and its focus on top-down mandatory disqualification fails to adequately encourage judges to be personally and professionally integrious. (5)

This Note suggests that these problems might be mitigated by comprehensively rethinking our approach to judicial disqualification based on halacha, traditional Jewish law. (6) Halachic recusal law offers an alternative to the current American approach, a jurisprudence that is grounded in courts' and judges' personal and professional duties, and which empowers jurists to develop their own integrity by limiting mandatory disqualification and relying instead on judges' duty-consciousness and self-disciplining decisions to voluntarily recuse. …