Objective Impartiality Standard

Judicial Disqualification

Objective Impartiality Standard

Rule 2.11(A) of the Model Rules of Judicial Conduct opens with one general command: a judge must disqualify herself in any proceeding in which her impartiality might reasonably be questioned, “including but not limited to” the specific circumstances that follow.¹ The phrase makes the list illustrative, so a judge can be required to step aside on facts that no drafter listed in advance. The federal disqualification statute, 28 U.S.C. § 455(a), uses the same operative words, and the federal decisions discussed below, which apply that statute, help explain what the Model Rule’s phrase demands.² The next section takes up how the general clause and the list fit together; this one asks what the general clause requires.

The clause tests appearance, not actual bias, for three reasons. A judge who is impartial in fact but reasonably seems partial still erodes the public confidence on which the courts depend. A test tied to appearance also spares courts the impossible task of crawling inside a judge’s mind to learn whether she is biased. And a judge can more easily concede that others might reasonably question her impartiality than concede that she is actually biased, which makes the rule easier for judges to accept and administer.³ The first concern carries extra weight because the procedural rules leave many details to the informed discretion of the judge in each case instead of regulating them by rigid provisions, so confidence in the judge’s impartiality matters all the more.⁴

Because the target is appearance, the inquiry is objective: would a disinterested observer, fully informed of the relevant facts, entertain a significant doubt that the judge was impartial?⁵ The judge’s own view of her fairness does not answer that question. In United States v. Chischilly, the reviewing court explained that it did not ask what the particular judge thought or experienced; it asked what a reasonable person would believe, and it treated the judge’s comments, like the arguments of counsel, as clues only. The court added that the task is hard because bias involves an emotional inclination as well as a mental outlook, and it is not easy to determine objectively what emotions a reasonable person might reasonably feel.⁶ The Supreme Court has accepted the cost of that objectivity. Such a stringent rule, it said in Murchison, “may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties,” yet “justice must satisfy the appearance of justice.”⁷

The hypothetical observer is informed but not unreasonably suspicious, because the disqualification decision must serve two ends at once: securing public confidence through proceedings that appear impartial, and keeping parties from too easily obtaining a judge’s disqualification and manipulating the system, perhaps to draw a judge more to their liking.⁸ Being informed includes knowing whose conduct supplies the facts. In Hewlett-Packard Co. v. Bausch & Lomb Inc., the movant, Bausch & Lomb, pointed to how Hewlett-Packard had handled the litigation. The court held that those asserted facts were not attributable to the judge and were therefore irrelevant, because a party’s conduct during litigation shows only the party’s feelings toward the judge, not the reverse that § 455 requires.⁹ One court states the starting point this way: it presumes a judge to be qualified and unbiased, and only evidence producing a “reasonable doubt” about that presumption overcomes it.¹⁰ A movant therefore needs evidence, not suspicion.

Neither actual bias nor the judge’s awareness of the disqualifying facts has to be shown. In Liljeberg v. Health Services Acquisition Corp., Judge Collins sat on the board of trustees of Loyola University while Liljeberg, a litigant before him, was negotiating with Loyola over a parcel of land for a hospital, and the success and benefit to Loyola of those negotiations turned in large part on Liljeberg prevailing in the litigation before the judge.¹¹ The Supreme Court held that scienter is not an element of a violation of § 455(a). A judge’s lack of knowledge of a disqualifying circumstance may bear on the remedy, but it does not eliminate the risk that others will reasonably question his impartiality. The Court also reasoned from the text: subsection (b)(4) expressly requires that the judge know of his interest, so reading a knowledge requirement into § 455(a) would make that language in (b)(4) extraneous.¹² The Model Rule draws the same contrast, since its economic-interest ground applies when the judge “knows” of the interest, while the general clause says nothing about knowledge.¹³

The general clause also reaches relationships that the enumerated grounds leave out. Consider a judge assigned a case in which a party is her longtime friend and maid of honor. No listed ground names that friendship, yet a close personal relationship is the kind of additional circumstance that makes a reasonable observer doubt impartiality, and the observer needs no list to see why.¹⁴ The reach has a limit. When a listed ground addresses a family tie and stops short of a more remote one, such as a blood relative too remote to make the list, the remote tie alone will not call impartiality into question “absent additional circumstances, such as a close personal relationship.”¹⁵

A judge who is looking for a job from someone who appears in the case shows the standard at work. In re Al-Nashiri, the argument against disqualification rested on formal designations: the Secretary of Defense, not the Attorney General, convenes military commissions, and commission prosecutors act in the name of the United States rather than any particular agency. The court called those points true, then answered that on issues of judicial impartiality it confronts “a question of reasonable appearances, not just formal designations,” and it concluded that the average, informed observer would consider the judge, Spath, to have presided over a case in which his potential employer appeared.¹⁶ The court allowed that Spath’s orders may well have been the product of his considered and unbiased judgment, unmotivated by any improper considerations, and held that this was beside the point: “[a]ppearance may be all there is, but that is enough.”¹⁷

The line comes from United States v. Microsoft Corp., where the court said that appearance “may be all there is, but that is enough to invoke the Canons and § 455(a).”¹⁸ The principle has a boundary. A court addressing judicial comments on pending cases declined to go so far as to hold that every violation of Canon 3A(6), or every impropriety under the Code of Conduct, inevitably destroys the appearance of impartiality and thus violates § 455(a).¹⁹ The clause still asks whether the facts of the particular case would give a reasonable observer significant doubt.

A judge who ignores the clause when the doubt is real risks more than a reversed ruling. In a California judicial-discipline matter, the judge admitted the conduct underlying the Commission’s charge: an improper ex parte conversation with the defendant, no arraignment on the obstructing charge, about twenty continuances over two years, and an eventual dismissal without explaining his actions or advising the district attorney’s office. He also admitted that he failed to disqualify and recuse himself even though he had said he planned to.²⁰

Not every connection to a litigant produces reasonable doubt. In Hewlett-Packard, the judge’s son worked for a party, and the court weighed that fact against others that mollified the situation. The plant that employed him was not involved with X-Y plotters; he was a non-management supervisor with no policymaking role, one of 83,000 employees; and a judgment against the company would affect neither his employment status nor his financial interest, including the profit-sharing plan in which every employee of six months’ standing participates.²¹ In Dahl v. Dahl, a spouse argued that the judge should have been disqualified because he made negative comments about her and issued many adverse rulings, because his wife was scheduled for surgery with a member of Dr. Dahl’s medical group, and because of their interactions in a prior case. The Utah appellate court reviewed the question for correctness, gave no deference to the decision below, and found no basis for disqualification.²² Compare the three decisions. In Al-Nashiri the judge’s own potential employer appeared in the case he was deciding, while in Hewlett-Packard nothing about the judgment reached the son’s job or finances. The facts that matter are those that tie the judge, or someone close to her, to what the case can give or take.

The third step does the real work; the others keep the observer fully informed and keep the judge’s subjective view out of the analysis.