Judicial Recusal: Cognitive Biases and Racial Stereotyping

Abstract

For generations, there had been strenuous resistance to the notion that judges are purely rational beings in their legal decision-making. In 1921, U.S. Supreme Court Justice Benjamin Cardozo — who at the time was a judge on the New York Court of Appeals — agreed. Then, in 1930, legal realist Jerome Frank speculated that judicial decisions could reflect such mundane influences as what the judge ate for breakfast. A decade later, when Frank sat on the federal bench, he continued with this line of reasoning. Contemporary judges and legal scholars have underscored the same sentiment. In recent decades, social scientists have demonstrated that people’s cognitive resources are limited. Accordingly, people often use mental shortcuts — heuristics — to solve complex problems. While useful for approximating solutions to problems that would otherwise prove too difficult if tackled directly, these shortcuts sometimes result in erroneous cognitive biases. Research suggests that these errors may influence judicial decision-making. For example, these types of shortcuts may lead to racial stereotypes such as associating race and crime. In turn, such automatic associations may lead to sentencing disparities. In this Article I explore implicit, subconscious race bias in judicial decision-making and its implications for judicial recusal. In Part I, I describe an unmistakable instance of racial stereotyping and prejudice demonstrated by a federal judge, in order to exemplify that judges harbor such attitudes. In Part II, I explore examples of white judges being racially biased against black litigants and what this may mean for judicial recusal. In Parts III and IV, I explore the extent to which black judges can be racially biased against white and black litigants, respectively. Overall, I contend that in light of the complex nature of subconscious race bias, different recusal standards should be used for black and white judges depending upon other contextual considerations.