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In the United States, judges are required to recuse themselves - that is, remove themselves from participating in a case - not only when they are biased, but even when they may appear biased to a neutral observer. This nominally strict, appearance-based recusal standard is intended to ensure the judge’s impartiality in resolving disputes, to protect the judiciary’s reputation, and to instill public confidence in the fairness of the courts. It has long been assumed that so long as the judge makes the correct recusal decision, the appearance of impartiality is restored and the reputation of the judiciary is protected.

This Article challenges that long-standing assumption and argues that the focus on appearances only at the time of the recusal decision, when the public has already formed its impressions of judicial impartiality, may not fully restore public confidence and protect the reputation of the judiciary. In other words, a judge’s recusal decision may be too little and come too late. Moreover, when appearances are considered on a case-by-case basis, often by the very judge whose impartiality has been challenged, even the correct nonrecusal decision does not always foster an appearance of impartiality.

Most of the literature on recusal focuses on the recusal standard and the reasons why judges might, intentionally or unintentionally, reach the incorrect recusal decision, and seeks solutions to that problem. In this Article, I propose a new role that appearances should play in American recusal jurisprudence, and a new approach to judicial recusal. I argue that rather than allowing individual judges to consider appearances ex post (i.e., in the context of individual cases), legislators must consider appearances ex ante to prevent the damage to the judiciary from arising in the first instance. This means that legislators must regulate judicial selection (including judicial elections) and judicial conduct, as well as extrajudicial conduct, with an eye towards potential future recusal. To that end, legislatures should create ethical rules and regulations designed to eliminate any appearance of impartiality from arising. And, to the extent that recusal cannot be avoided by such ex ante regulation, legislatures must also consider appearances ex ante in creating and implementing new recusal procedures.

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Brigham Young University Law Review





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