Magical Thinking and Appearance-based Recusal

This article is a critical analysis of a fundamental judicial ethic, the appearance of impartiality, an increasingly important public issue that is poorly understood and woefully underexamined in jurisprudence and academic literature. The ethic is pivotal to the determination of judicial disqualification, a/k/a recusal, and the public's fragile trust in the rule of law.

The article explains how a mysterious metaphorical device, the “reasonable observer” (a descendant of the common law's “reasonable man”) has been subjectively applied in a confusing and inconsistent manner in judicial disqualification cases. The unexamined approach has unwittingly undermined the plain text and the mandatory ethical obligation of recusal (i.e., a judge must disqualify when his or her impartiality might reasonably be questioned).

The discussion: (a) analyzes the theoretical underpinnings of the reasonable person-observer analytical tool (“heuristic”); (b) explains how American jurisprudence has glibly transmogrified the appearance-recusal precept; (c) provides a unique and starkly contrasting analytical perspective demonstrating how select common law-based jurisdictions (Australia, Canada, Singapore, South Africa, United Kingdom) have painstakingly examined and applied the widely-recognized norm of appearance-based impartiality; and (d) synthesizes the preceding theoretical and jurisprudential information to support a proposal for a recalibrated metric and a pragmatic, clarifying heuristic. The article concludes with a model provision, in the form of a guiding “commentary,” that summarizes the essential aspects of the appearance of bias precept. The article provides an interpretative approach that attempts to be faithful to the letter and spirit of the foundational judicial ethic.