Scholarly Commons @ UNLV Boyd Law Scholarly Works Faculty Scholarship 2011 In Praise of Procedurally Centered Judicial Disqualification - and a Stronger Conception of the Appearance Standard: Better Acknowledging and Adjusting to Cognitive Bias, Spoliation and Perceptual Realities Jeffrey W. Stempel University of Nevada, Las Vegas -- William S. Boyd School of Law Follow this and additional works at: https://scholars.law.unlv.edu/facpub Part of the Judges Commons Recommended Citation Stempel, Jeffrey W., "In Praise of Procedurally Centered Judicial Disqualification - and a Stronger Conception of the Appearance Standard: Better Acknowledging and Adjusting to Cognitive Bias, Spoliation and Perceptual Realities" (2011). Scholarly Works. 748. https://scholars.law.unlv.edu/facpub/748 This Article is brought to you by the Scholarly Commons @ UNLV Boyd Law, an institutional repository administered by the Wiener-Rogers Law Library at the William S. Boyd School of Law. For more information, please contact [email protected]. In Praise of Procedurally Centered Judicial Disqualification-and a Stronger Conception of the Appearance Standard: Better Acknowledging and Adjusting to Cognitive Bias, Spoliation, and Perceptual Realities Jeffrey W. Stempel* I. FACING REALITY: JUDGING AND JUDGES IN THE REAL WORLD .......................................... 740 A. Unconscious Bias and Insufficient Self-Awareness ........ 740 B. The Inevitable Socio-PoliticalElement ofAdjudication ............................. .... ... 750 C. Spoliation Concerns ................... ...... 753 1. The Inherent Difficulty of Demonstrating the Impact of a Tainted Judge and the Harm of Harmless Error Analysis. ....................... ........ 753 2. The Inherent Difficulty of Uncovering and Demonstrating Bias or Prejudice in Judges............764 II. THE PROMISE OF PROCEDURAL PROTECTIONS ...... ....... 767 A. Per Se DisqualificationStandards (Without Exception) as Useful ProceduralProtections ............ ...... 767 1. Limiting Waiver......................771 2. Eliminating De Minimis Exceptions to Financial, Professional, or Factual Disqualification...............774 2. Recognizing Substantial Campaign Support as a Disqualifying Interest. ............... ..... 778 B. A Punch List ofProceduralImprovements ..... ..... 788 1. Peremptory Challenges...................789 2. Recusal Motions Should Be Heard by Independent Judges.............................794 3. Written Decisions Regarding Disqualification Motions with Reasons (Considered Published and Citable)... 799 4. Elimination of the Pernicious "Duty to Sit"............801 * Doris S. & Theodore B. Lee Professor of Law, William S. Boyd School of Law, University of Nevada Las Vegas. Thanks to Les Abrahamson, Bill Boyd, Charles Geyh, David Herr, Doris Lee, Ted Lee, Mike Martin, Ann McGinley, Jim Rogers, Tuan Samahon, Margaret Tarkington, John White, and participants in the Section on Litigation program at the 2011 Annual Meeting of the Association of American Law Schools. Thanks also to Jeanne Price, David McClure, and Kathleen Wilde for valuable research assistance. C 2010 Jeffrey W. Stempel. HeinOnline -- 30 Rev. Litig. 733 2010-2011 734 THE REVIEW OF LITIGATION [Vol. 30:4 5. Disqualification Decisions Reviewed De Novo with an End to Abuse of Discretion Review and Harmless Error Exceptions..........................804 III. AVOIDING THE ACCLAMATION FALLACY: A MORE REASONABLE TRIGGER OF THE REASONABLE QUESTION AS TO IMPARTIALITY STANDARD AND THE IMPLICATIONS OF THE NEW APPROACH FOR POLITICALLY AND IDEOLOGICALLY BASED APPEARANCES OF PARTIALITY .............................................. 806 IV. IMPLICATIONS OF THE NEW APPROACH FOR POLITICALLY AND IDEOLOGICALLY BASED APPEARANCES OF PARTIALITY..........823 V. AN AGENDA FOR FUTURE RESEARCH.................... 846 VI. CONCLUSION ............................................. 848 Questions of judicial impartiality inspire strong assessments and emotions that now run particularly high in the wake of Caperton v. A.T Massey Coal Co.,' Citizens United,2 and another season of big money, interest group, sound-bite laden judicial elections 3 that 1. 129 S. Ct. 2252 (2009). In Caperton, the Court in a 5-4 decision held that due process required West Virginia Supreme Court Justice Brent Benjamin to recuse himself in a case involving review of a $50 million judgment levied against a company where the company's CEO had accounted for $3 million in campaign support for the state court justice in a hotly contested election in which the Justice unseated an incumbent. See Jeffrey W. Stempel, Impeach Brent Benjamin Now!?, Giving Adequate Attention to the Failings of JudicialImpartiality, 47 SAN DIEGO L. REV. 1, 2-62 (2010) (concluding that Justice Benjamin's conduct was so clearly in violation of established law as to call into question his competence or integrity); see also Jeffrey W. Stempel, Completing Caperton and Clarifying Common Sense Through Using the Right Standardfor ConstitutionalJudicial Recusal, 29 REV. LITIG. 249, 250-68 (2010) (summarizing Caperton decision and arguing for expansion of Caperton's constitutional recusal standard as a backstop in cases of severe error in failing to recuse by state court judges). 2. See Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876, 889 (2010) (relying on the First Amendment to greatly limit the range of permissible government regulation and interpreted by many to permit largely unlimited corporate spending on electoral contests). 3. See James Sample et al., The New Politics of Judicial Elections, JUDICATURE, Sept.-Oct. 2010, at 50 (explaining that special interest groups put millions into campaigns in an attempt to affect their outcomes); Richard L. Hasen, Citizens United and the Illusion of Coherence, 109 MICH. L. REV. 581, 591-604 (2011) (summarizing decision); see also id. at 611-15 (predicting that Court will apply the decision differently regarding judicial elections and spending as contrasted with legislative and executive elections). HeinOnline -- 30 Rev. Litig. 734 2010-2011 Symposium 2011] APPEARANCE STANDARD 735 included the failure of merit selection initiatives4 and the removal of three Iowa Supreme Court Justices for the "crime" of issuing a 5 decision striking down state prohibition of same-sex marriage. As Professor Charles Geyh has noted, issues of judicial impartiality and disqualification are at the forefront of contemporary debates about the state of the legal system.6 Judicial disqualification 4. For example, a proposed revision to the Nevada Constitution to adopt a variant of the Missouri Plan, in which judges are initially appointed by the governor from a short list generated by a merit selection committee that includes lawyers and laypersons and then are required to prevail in retention elections to maintain their posts, was soundly defeated. See General Election Results, LAS VEGAS REv.-J., Nov. 4, 2010, at 4B (stating that ballot Question No. 1 regarding judicial appointments lost with 58% (390,370 votes) voting "No" and 42% (285,746 votes) voting "Yes"). In a bit of a dark day for judicial reform, creation of an intermediate appellate court (Nevada is the largest state with no such court) lost by a 53% to 47% vote. Id. But see Sylvia R. Lazos & Chris W. Bonneau, Appoint judges? No thanks, LAS VEGAS REV.-J., Oct. 31, 2010, at 4D (departing from prevailing academic sentiment, a law professor and political scientist support election of judges). 5. See A. G. Sulzberger, Ouster of Iowa Judges Sends Signal to Bench, N.Y. TIMES, Nov. 4, 2010, at Al (stating that voters chose to remove all three justices on the liberal Iowa Supreme Court who were seeking new terms). See also Varnum v. Brien, 763 N.W.2d 862, 872 (2009) (holding unanimously that Iowa's definition of marriage as between man and woman violated the state and federal constitutions). But see Editorial,Iowa's Total Recall, WALL ST. J., Nov. 6, 2010, at A12 (cheering the defeat of the judges and describing gay marriage decision as "precisely the kind of judicial arrogance-finding a right to gay marriage in the state constitution after many decades in which no one noticed it- the recall election was designed for," and criticizing Missouri Plan merit selection as "allowing the lawyers guild that dominates the nominating process to get virtual lifetime tenure for their selections," but supporting executive appointment of judges rather than election; stating "[a] better system would be to let the Governor nominate anyone he chooses and have the legislature offer advice and consent, as in Washington"). 6. See Charles Gardner Geyh, Why Judicial Disqualification Matters. Again., 30 REV. LITIG. 671, 673-74 (2011) (noting that the combination of the 2007 revisions to ABA Model Code of Judicial Conduct, high-spending, high- profile state court elections, and the Supreme Court's Caperton decision has focused greater attention on judicial disqualification). See also Leslie Abramson, Remarks at Current Issues in Judicial Disqualification: Assessing the Landscape Post-Caperton, Citizens United and the 2007 ABA Model Code of Judicial Conduct (Jan. 7, 2011) (stating that although the ABA 2007 Model Code seeks to expand grounds for judicial disqualification to include receipts of campaign contributions from interested litigants or counsel, states have been slow to adopt proposed change and abandon historical norms viewing campaign support as non- HeinOnline -- 30 Rev. Litig. 735 2010-2011 736 THE REVIEW OF LITIGATION [ Vol. 30:4 is "hot" and "matters-again."7 Judge M. Margaret