Recusal Failure

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