55 Pages Posted: 13 Mar 2014 Last revised: 3 Apr 2014
Date Written: March 12, 2014
Building on the framework of “cause lawyering” scholarship, this Article explores the fact that, in the tradition of “cause lawyering”, law practice animated by dedication to a cause, “cause judging” exists as well. This insight has implications for judicial ethics norms. The hyper-partisan nature of modern American life has already cast doubt on the possibility that politically appointed judges can ever truly attain the “appearance of impartiality” demanded by judicial recusal standards. Instead, for the sake of fairness, accuracy, and public respect for the judiciary, judicial ethics norms should embrace the fact that judges have moral and political ideals that inform their rulings when they exercise judicial discretion, and some judges are cause judges. This acknowledgment would allow for an analysis of our judicial recusal regime that delineates between fair and unfair instances of cause judging. To illustrate, the case of United States v. Marcus Garvey and the Agent Orange case are juxtaposed. The comparison demonstrates that, in light of the reality of cause judging, an “appearance of fairness” standard would work better than the current regime. It would recognize that transparent cause judging adds value to the profession in the same way that cause lawyering does, while additionally improving public confidence in the judiciary and reinforcing a sense of fairness.
Keywords: Judges, Recusal, Cause Lawyering, Social Justice, Judicial Ethics
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