In Praise of Procedurally Centered Judicial Disqualification-And a Stronger Conception of the Appearance Standard: Better Acknowledging and Adjusting to Cognitive Bias, Spoliation, and Perceptual Realities

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I. FACING REALITY: JUDGING AND JUDGES IN THE REAL WORLD ........................................................................ 740

A. Unconscious Bias and Insufficient Self-Awareness ........ 740

B. The Inevitable Socio-Political Element of Adjudication .................................................................. 750

C. Spoliation Concerns ........................................................ 753

1 . The Inherent Difficulty of Demonstrating the Impact of a Tainted Judge and the Harm of Harmless Error Analysis ..................................................... 753

2. The Inherent Difficulty of Uncovering and Demonstrating Bias or Prejudice in Judges ............ 764

II. THE PROMISE OF PROCEDURAL PROTECTIONS ........................ 767

A. Per Se Disqualification Standards (Without Exception) as Useful Procedural Protections ........................................ 767

1 . Limiting Waiver ........................................... 771

2. Eliminating De Minimis Exceptions to Financial, Professional, or Factual Disqualification ............... 774

2. Recognizing Substantial Campaign Support as a Disqualifying Interest ..................................... 778

B. A Punch List of Procedural Improvements ..................... 788

1 . Peremptory Challenges ................................... 789

2. Recusal Motions Should Be Heard by Independent Judges ....................................................... 794

3. Written Decisions Regarding Disqualification Motions with Reasons (Considered Published and Citable). . . 799

4. Elimination of the Pernicious "Duty to Sit" ............ 801

5. Disqualification Decisions Reviewed De Novo with an End to Abuse of Discretion Review and Harmless Error Exceptions .................................................. 804

III. AVOIDING THE ACCLAMATION FALLACY: A MORE REASONABLE TRIGGER OF THE REASONABLE QUESTION AS TO IMPARTIALITY STANDARD AND THE IMPLICATIONS OF THE NEW APPROACH FOR POLITICALLY AND IDEOLOGICALLY BASED APPEARANCES OF PARTIALITY ............................................................................. 806

IV. IMPLICATIONS OF THE NEW APPROACH FOR POLITICALLY AND IDEOLOGICALLY BASED APPEARANCES OF PARTIALITY .......... 823

V. AN AGENDA FOR FUTURE RESEARCH ...................................... 846

VI. CONCLUSION ........................................................................... 848

Questions of judicial impartiality inspire strong assessments and emotions that now run particularly high in the wake of Caperton v. A.T. Massey Coal Co.1 Citizens United2 and another season of big money, interest group, sound-bite laden judicial elections3 that included the failure of merit selection initiatives4 and the removal of three Iowa Supreme Court Justices for the "crime" of issuing a decision striking down state prohibition of same-sex marriage.5

As Professor Charles Geyh has noted, issues of judicial impartiality and disqualification are at the forefront of contemporary debates about the state of the legal system.6 Judicial disqualification is "hot" and "matters - again."7 Judge M. Margaret McKeown might respond that judicial impartiality has always mattered and that the judicial establishment has been addressing the issues vigorously8 despite occasional news stories that portray some members of the bench in an unfavorable light.9 My own view is that while many judges and much of the judicial establishment are to be commended for the seriousness with which disqualification and other ethics issues are addressed,10 the problem remains under-addressed rather than overstated.11

In that regard, I largely agree, but take some modest issue with, aspects of Professor Geyh's contribution to this symposium in which he embraces, seemingly with more resignation than enthusiasm, "procedural" or process-oriented approaches as a pragmatic but perhaps second-best response to the problem of judicial recusal. …

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