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Saint Louis University Public Law Review

Abstract

In recent years a number of high-profile disqualification decisions have caught the attention of the legal community and the public at large. The most notable instances have involved Justices sitting on the United States Supreme Court, including calls by members of Congress and the legal academy for Justices Kagan and Thomas to step aside in the appeal challenging the constitutionality of the Affordable Care Act. In addition, a motion to disqualify the homosexual state court judge in the dispute regarding the constitutionality of California’s Proposition 8 which bans gay marriage, and the defense motion to disqualify the judge overseeing the trial of George Zimmerman for the murder of Trayvon Martin both engendered disagreements about the proper bounds of disqualification practice and judge shopping. Of course, there is the Caperton case—an epic battle over disqualification of a state supreme court justice in an appeal involving a stakeholder who provided significant campaign support to the jurist—which resulted in a landmark opinion on recusal standards from the United States Supreme Court.

Each of these disqualification cases is different in respect of the underlying causes of action and the type of relationships or other facts that suggest possible judicial bias. But in each case, the jurist whose impartiality was challenged was the person who, at least initially, decided whether he was biased and in each case the request to step aside was denied. Often the jurist’s decision to remain on the case was made with no satisfactory explanation and few, if any, other procedural protections. While in some cases the jurist may be guilty of a less than honest response to the recusal request, in most cases the judge likely is genuinely—though perhaps naïvely—convinced of his impartiality. Nevertheless, most of these decisions to remain on the case have been met with dismay by the litigants, scorn and ridicule from the media and the public at large, and, at best, skepticism from many within the legal academy. These negative reactions to the jurists’ decisions they are not disqualified reflect a disconnect between the way the challenged jurist perceives his own bias and the perception of others, including the litigants, the media, and the public.

This asymmetry in perceptions of bias between self and other is confirmed by recent research in cognition and social psychology that reveals we all suffer from a Bias Blind Spot. In other words, we don’t see our own biases—but we are quick to infer and even exaggerate bias in others. This Bias Blind Spot has three primary causes: (1) self-enhancement and self-interest motives; (2) the differing “evidence” of bias used to evaluate bias in self and bias in others; and (3) Naïve Realism. Each of these three phenomenon helps explain the differing perspectives of challenged jurists and the public regarding judicial bias in specific cases. Also, these perceptions and misperceptions of bias can create a confrontational atmosphere that increasingly surrounds some high stakes disqualification disputes. Thus, understanding our Bias Blind Spot can help reshape the disqualification debate—both with regard to making disqualification decisions in individual cases and adopting system-wide reforms.

To accomplish these goals, this Article uses the Caperton case as an exemplar of how the Bias Blind Spot affects disqualification decisions, and to explain why new disqualification procedures that correct for this Bias Blind Spot must be adopted to protect litigants fundamental rights and to ensure continued public confidence in the judiciary. Part I briefly explains the importance of impartial judges in our legal system and the historical presumption of impartiality that permits the subject judge or justice to make a decision on his own disqualification with few, if any, other procedural protections. Also, in this section specific aspects of current disqualification practice are examined to help understand how the substantive and procedural standards working together increase the chances that jurists will make mistakes when deciding whether they must step aside. In Part II, the findings of recent social science research into the Bias Blind Spot and related cognitive illusions that are likely to affect disqualification disputes are explored. In Part III, the opinions of all three challenged West Virginia State Supreme Court Justices—Benjamin, Maynard, and Starcher—are analyzed to reveal exactly how the Bias Blind Spot likely shaped these decisions. This detailed review of what happened in Caperton exposes the flaws of current practice that permits the challenged jurist to decide his own disqualification dispute. In Part IV, this Article proposes that the best way to compensate for the effect of the Bias Blind Spot in disqualification decisions is to adopt procedural reforms that prevent the challenged jurist from being the decision maker in such disputes. This section also explores some of the more serious objections raised to the proposed procedural reforms. Based upon this analysis, the Article ends with a Conclusion that if we want to protect individual litigants’ fundamental rights to a fair trial before a fair tribunal and preserve public confidence in our courts, then we must consider the cognitive illusions that affect decision making and refocus recusal reform on changing disqualification procedures in order to counter the effects of the Bias Blind Spot.

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