Our Unconstitutional Recusal Procedure

By Associate Professor Dmitry Bam

Associate Professor Dmitry BamIt has happened again. The judge presiding over the child abuse trial of Minnesota Vikings star Adrian Peterson has decided that he need not recuse himself, despite prosecutors’ allegations of judicial bias. Judge Kelly Case joins a long line of colleagues around the country who have recently made similar non-recusal decisions in high-profile cases. (See, e.g., here and here.) For many people, there is something troubling about the recusal process followed in each of these cases. The fact that the very judge whose impartiality is under attack decides whether recusal is required strikes some as problematic, even bizarre. And legal scholars have frequently criticized that recusal procedure, questioning whether the process makes sense given the importance of judicial impartiality to our justice system.

In a forthcoming article, I argue that this recusal procedure is unconstitutional. I base my argument on the Supreme Court’s interpretation of the Due Process Clause, and numerous decisions, going as far back as British common law, holding that “no man shall be a judge in his own cause.” A recusal procedure that leaves the decision whether to step aside in the hands of the judges whose impartiality is in question violates that basic tenet of due process. Allowing potentially biased judges—judges who may have a stake in the outcome of a case, judges who may owe one or the other litigant a favor, or who have some personal animosity towards one of the lawyers—to decide their own recusal motions leaves one of the most fundamental constitutional rights—the right to an impartial tribunal—unprotected. Judges presiding over these high-profile criminal prosecutions have plenty of incentives to remain on the case, not the least of which is national attention and notoriety.

The self-recusal procedure is particularly problematic because judges who are tasked with evaluating their impartiality are often not even going to be aware of their own biases. That is because judges, like all of us, suffer from cognitive biases that are particularly disabling when we try to evaluate our own conduct. In fact, modern research in cognitive psychology has recognized a number of biases (including self-serving bias, the egocentric bias, and the self-interest bias) that affect judicial decision-making, and these are especially relevant for recusal decisions. No matter how hard we try, we tend to think we are better than we actually are at a number of different tasks and on a number of different criteria, including the task of being fair and impartial.

In the article, I argue that to avoid constitutional objections, state and federal recusal procedures must be amended to allow other jurists to decide such recusal motions. Some states have already gone in that direction for some of their judges, and others must follow suit.