Judicial Disclosure & the Judicial Mystique

Abstract

Judges in the American legal system are expected to be neutral. To this end, judges are required to recuse themselves whenever their impartiality might reasonably be questioned. Yet, this requirement is by and large designed to be self-policed. This self-policing structure is a deviation from the ordinary presumptions of adversarial litigation, not the least because it depends upon the presumption that judges are disinterested about whether they are improperly interested. To compensate for this, a robust body of common law has developed that requires judges to disclose facts about themselves that might affect their neutrality, even if they do not believe that recusal is required. The nature of judicial disclosure obligations is surprisingly under-theorized both in the case law and the scholarly literature. The case law, especially, has been prone to ground the bases and limits of judges' disclosure obligations on formalistic and often quite specious arguments that, this essay concludes, tend to reach a defensible result for misguided and often contradictory reasons. This essay further concludes that the extent of a judicial actor's disclosure requirements tend to be inversely correlated with the durability of their judicial status. The more robust a judicial actor's claim to judicial status, the more the judicial actor is protected from disclosure by what I call the “judicial mystique,” the presumption that the judge is the mere embodiment of rules governed state power and may therefore be interchanged with any other judge without an appreciable effect on the outcome of any given case. Hence, Supreme Court judges disclose very little about themselves, whereas arbitrators are subject to exceptionally rigorous disclosure obligations. The essay then considers the peculiar place of military judges along this continuum and offers a close reading of the D.C. Circuit's decision in In re Al-Nashiri, 921 F.3d 224 (D.C. Cir. 2019), which vacated the rulings of a military judge, in part, because of his failure to disclose the extent to which he was seeking post-retirement employment from the Department of Justice in a high-profile case.