Document Type

Working Paper

Publication Date

11-16-2004

SSRN Discipline

Legal Scholarship Network; Law School Research Papers - Legal Studies; Litigation, Procedure & Dispute Resolution eJournals; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory

Abstract

The aim of recusal and disqualification is to ensure both actual judicial impartiality which is a necessary prerequisite of due process and the appearance of impartiality which is necessary to ensure confidence in the courts The laudable and constitutionally mandated goal of eliminating bias raises different issues at each of the three federal court levels the federal district courts the federal courts of appeals and the United States Supreme Court While recusal and disqualification issues at both the district court and Supreme Court levels have attracted the attention of legal scholars the federal courts of appeals have largely been overlooked This omission is interesting because the goal of eliminating bias in the federal courts of appeals is undercut by three prominent problems affecting recusal and disqualification The first of these problems lies in the recusal and disqualification procedures available in the federal appellate courts At the federal appellate court level both the guidelines and the remedy are illdefined at best The federal judicial disqualification statute by its terms applies only to district court judges not appellate court judges This leaves recusal as the only remedy in the federal appellate courts a remedy that is vested solely in the appellate judges themselves Moreover for all practical purposes no review exists of appellate judges recusal decisions The second problem is that certain practices and procedures unique to the federal appellate courts limit the effectiveness of recusal and disqualification For example the parties to an appeal learn the composition of their threejudge panel after the matter has been calendared for oral argument which typically occurs less than thirty days before the oral argument Moreover most practicing lawyers have little contact with appellate judges and appellate judges generally maintain a lower profile than trial judges The third problem is the complete failure of available mechanisms to recognize unconscious bias Recent psychological studies suggest that unconscious bias is far more prevalent than previously believed Accordingly any judicial recusal and disqualification scheme should contain some mechanism for addressing such bias This Article proposes a modified peremptory challenge procedure incorporating both substantive and procedural changes that address existing deficits in recusal and disqualification provisions for federal appellate judges

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