Gregory S. Parks
Abstracted from: Gregory S. Parks, Judicial Recusal: Cognitive Biases and Racial Stereotyping, 18 NYU Journal of Legislation and Public Policy 681 (2015) (112 Footnotes)
For generations, there had been strenuous resistance to the notion that judges are purely rational beings in their legal decision-making. For example, in 1881, jurist Oliver Wendell Holmes, Jr. minimized the role of logic and underscored the role of experience in judicial decision-making:
The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics . . . .
In 1921, U.S. Supreme Court Justice Benjamin Cardozo--who at the time was a judge on the New York Court of Appeals-- agreed. *682 Then, in 1930, legal realist Jerome Frank speculated that judicial decisions could reflect such mundane influences as what the judge ate for breakfast. A decade later, when Frank sat on the federal bench, he continued with this line of reasoning. Contemporary judges and legal scholars have underscored the same sentiment.
In recent decades, social scientists have demonstrated that people's cognitive resources are limited. Accordingly, people often use mental shortcuts-- heuristics--to solve complex problems. While useful for approximating solutions to problems that would otherwise prove too difficult if tackled directly, these shortcuts sometimes result *683 in erroneous cognitive biases. Research suggests that these errors may influence judicial decision-making. For example, these types of shortcuts may lead to racial stereotypes such as associating race and crime. In turn, such automatic associations may lead to sentencing disparities.
In this Article I explore implicit, subconscious race bias in judicial decision-making and its implications for judicial recusal. In Part I, I describe an unmistakable instance of racial stereotyping and prejudice demonstrated by a federal judge, in order to exemplify that judges harbor such attitudes. In Part II, I explore examples of white judges being racially biased against black litigants and what this may mean for judicial recusal. In Parts III and IV, I explore the extent to which black judges can be racially biased against white and black litigants, respectively. Overall, I contend that in light of the complex nature of subconscious race bias, different recusal standards should be used for black and white judges depending upon other contextual considerations.
* * *
Judges are human. They suffer from the same frailties, flaws, and foibles that the rest of us do. That includes being subject to a whole host of cognitive biases. Given the extent to which the valuation of whiteness and devaluation of blackness permeates American society, it is no surprise that all racial groups tend to automatically or subconsciously preference whiteness over blackness. Such preferences create a fairly simple narrative about white judges--that if there is some explicit indicia that they are racially biased (e.g., jokes, comments, emails), there may be a strong likelihood that they may discriminate, even in some small way, against a black litigant.
As for black judges, given the diffuse nature of their implicit racial attitudes, even in the context of having made explicitly pro-black and/or anti-white statements, what they actually mean is harder to discern. For instance, a black judge may be explicitly pro-black but implicitly pro-white, which may influence his or her judgments and behaviors to an even greater degree. In short, while they may appear likely to engage in so-called reverse discrimination, they may or may not actually be likely to do so given their implicit biases. With all that said, political ideology may undergird and amplify implicit racial attitudes, *697 including among black judges, making it more likely that they may exhibit bias against black litigants-- especially where these judges' statements or actions provide some explicit indicia of bias.
All of these considerations underscore the fact that recusal in the context of race is not a simple and straightforward matter, but rather one that must be considered in light of contemporary social science. Even more, it highlights the need for judges to acknowledge that they may have subconscious biases, that these biases may influence their judgment and decision-making, and that they should recuse themselves under such circumstances or--as a preventative measure--work to achieve impartiality at a subconscious level.
Assistant Professor of Law, Wake Forest University School of Law