Keeping Up Appearances

Abstract

The laws governing judicial recusal are failing to protect the reputation of the judiciary, as was illustrated by the recent controversy surrounding Justice Scalia's refusal to recuse himself from Cheney v. United States District Court for the District of Columbia. The history of recusal law reveals that each time Congress amends the recusal statutes to expand their scope, judges interpret the legal standards narrowly to avoid disqualification. This article contends that the recusal statutes are ineffective not because the substantive standards for recusal are too limited, but rather because the recusal process operates outside of the traditional adjudicatory model. For example, the very judge whose impartiality is being questioned is expected to raise and decide the question whether his or her own conduct creates the appearance of impartiality, and often makes that decision without issuing any explanation for it. Drawing on the literature locating the judiciary's legitimacy in traditional forms of adjudication, this article suggests that recusal law will only serve its purpose of protecting the judiciary's reputation if it incorporates these core procedural tenets of adjudication into the recusal decision. Specifically, the article proposes procedural reforms such as encouraging an adversarial presentation of the recusal question to an impartial judge who must issue a reasoned decision that will provide guidance for judges in future cases.

Keywords: Recusal, disqualification, judicial ethics