Three Reasons Why the Challenged Judge Should Not Rule on a Judicial Recusal Motion

Abstract

My remarks as a panelist at the New York University symposium, "Courts, Campaigns, and Corruption: Judicial Recusal Five Years After Caperton," focused on the need for alternative or additional decision-makers to decide judicial disqualification motions due to the extensively documented phenomenon of unconscious bias, whereby individuals do not always recognize their own biases and prejudices. I previously have written about the significance of unconscious bias in the judicial recusal and other contexts. Taking this opportunity to elaborate on this topic, I would like to offer three reasons why a challenged judge should not rule on his or her own judicial recusal motion. These three reasons, which have the potential to overlap, include unconscious bias, the bias blind spot, and the impact of publicly stating a position. Due to the automatic nature of these mental processes, the challenged judge typically will not be aware of their effect on his or her decision-making process. Accordingly, the use of additional or substitute decision-makers can bring a more impartial perspective to the recusal motion, ensuring that the challenged judge does not deny the motion for reasons personal to, but unrecognized by, the judge.