The right to be tried by an impartial judge is deeply embedded in American jurisprudence; in fact, this right has often been considered to be the “cornerstone” of the American legal system. Litigants and their counsel often come to believe that a judge has become biased or prejudiced against them, or in favor of an opposing party; however, bias is an attitude or “state of mind,” not an easily provable “fact.” Consequently, even in those jurisdictions which have laws on the books which authorize parties to seek to disqualify judges on the basis of bias, as opposed to interest in the cause, it is typically only in those rare instances when a judge verbalizes bias against a party or its counsel that a motion to recuse can successfully be made on this ground.
In part because of their recognition of the fact that judicial bias can seldom be proved, legislatures in many jurisdictions have authorized parties to seek disqualification on the basis of an “appearance” of judicial bias or impropriety. For example, the primary federal judicial statute, Title 28 U.S.C. § 455, contains a provision (§ 455 a) that calls for a federal judge to be disqualified not only when he is biased against a party, but whenever a reasonable, disinterested observed would think he might be. Many states have statutes or court rules that are to a similar effect.
The existence of these provisions sometimes leads litigants and even attorneys to believe that disqualifying a judge on the basis of an untoward “appearance” is not a difficult thing to do. In many jurisdictions, however, the person who is called upon to decide what a reasonable person would believe is the very judge who is being accused of being biased. For this reason, because courts in many jurisdictions have placed a number of limitations on the right to challenge a judge for an appearance of partiality or impropriety, and because many judges continue to adhere to the “duty to sit” doctrine – which basically holds that a judge is obliged not to step away from a case she has been assigned to handle unless there is a mandatory basis for her doing so – the fact that a particular jurisdiction may allow disqualification motions to be based on untoward “appearances” is not necessarily the panacea for perceived judicial bias that many litigants seem to think it is.
1. For an example of a recent (2013) federal court order denying a motion to disqualify on bias and appearance of bias grounds click here
2. For a self-study article and self-assessment test on this subject click here
3. For a comprehensive overview of both the bias and appearance of bias grounds for disqualifying judges – including a detailed discussion of the “extrajudicial source rule” [wiki] – see chapters 3 through 5 of Flamm, R., Judicial Disqualification: Recusal and Disqualification of Judges (Second Edition 2007 and updated annually). For a recent (2013) article discussing the “appearance” basis for disqualification see D. Bassett & R. Perschbacher, “Perceptions of Justice: An International Perspective on Judges and Appearances,” 36 Fordham Int’l L.J. 136 (Jan. 2013). For a 2011 article on the same subject see D. Bam, “Making Appearances Matter: Recusal and the Appearance of Bias,” 2011 BYU L. REV. 943 , (both articles citing R. Flamm, Judicial Disqualification). To locate libraries near you which have the most recent edition of Judicial Disqualification in their collection click here