Recusal Failure

28 Pages Posted: 29 Aug 2016

See all articles by Dmitry Bam

Dmitry Bam

University of Maine - School of Law

Date Written: March 1, 2015

Abstract

The American judiciary is suffering from a terrible affliction: biased judges. I am not talking about the subconscious or unconscious biases — stemming from different backgrounds, experiences, ideologies, etc. — that everyone, including judges, harbors. Rather, I am describing invidious, improper biases that lead judges to favor one litigant over another for reasons that almost everyone would agree should play no role in judicial decision-making: the desire to repay a debt of gratitude to those who helped the judge get elected and be reelected.

In this article, I argue that that recusal has failed to prevent biased judges from rendering judicial decisions. Indeed, I suggest that recusal cannot serve as the solution to the problem of biased judges. Part of the reason is that in most jurisdictions, it is the judge herself who must decide whether to recuse. It is foolhardy to put the recusal power in the hands of those most likely to be biased. But putting aside the procedural concern, recusal suffers from another fatal flaw. All elected judges must contend with the majoritarian difficulty outlined above and must worry about how their decisions will be perceived by the voters in the next election. That means that whoever replaces the recused judge will necessarily be subject to the same majoritarian pressures. Admittedly, recusal done right could eliminate the bias toward or against the immediate litigants, but even a perfectly implemented recusal procedure.

Keywords: Judicial elections, judicial bias, judicial selections, recusal, constitutional law, judges, subconscious bias, disqualification

Suggested Citation

Bam, Dmitry, Recusal Failure (March 1, 2015). New York University Journal of Legislation and Public Policy, Vol. 18, No. 3, 2015, Available at SSRN: https://ssrn.com/abstract=2830117

Dmitry Bam (Contact Author)

University of Maine - School of Law ( email )

246 Deering Avenue
Portland, ME 04102
United States

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