Federal Judicial Disqualification: A Behavioral and Quantitative Analysis

Abstract

The issue of judicial recusal has become front-page news. House Democrats have called on Justice Thomas to recuse himself from cases challenging the constitutionality of the Patient Protection and Affordable Care Act because of his wife’s role as paid lobbyist against that act. Republicans are calling for the recusal of Justice Kagan from the same cases because of her service as Solicitor General when the Obama administration was considering how to structure health care reform legislation to survive constitutional challenge. Over the past two centuries, judicial recusal standards have been tightened repeatedly. Nevertheless, in case after high-profile case, they still sometimes fail to ensure the kind of legitimating impartiality we demand of our courts. In the meantime, psychology has expanded the range of tools available for making the “realistic appraisal of psychological tendencies and human weakness” believed relevant to understanding when recusal is warranted. We are at least beginning to understand the role of heuristics in human judgment – heuristics that sometimes trigger cognitive illusions and faulty decision-making. Such illusions are particularly problematic when a judge is called upon to decide whether he can decide impartially – in effect, to decide whether he is competent to perform, in a particular case, the role to which he has dedicated his life.Part I outlines recent cases and developments in the area. The situation, suffice it to say, is not completely satisfactory. Part II explores the history of the law of judicial recusal. Even today, standards and procedures are unclear, affording enormous discretion to judges who are asked to apply recusal rules impartially to themselves. Part III discusses developments in human decision-making theory that may begin to identify contexts in which judges are least likely to be able to apply the recusal rules objectively to themselves. Part IV presents the results of a survey of U.S. appellate court cases decided between 1980 and 2007 on appeals from refusals of district court judges to recuse themselves. The data suggest that the enormous discretion currently given judges has resulted in substantial geographic disparity in application of the rules – that is, in different recusal cultures, circuit to circuit. The data also appear to be consistent with predictions behavioral theory might make as to when judges are less likely to be able to make objectively defensible assessments of their own abilities to decide impartially. Part V, finally, concludes and outlines future possible work in the area.