The current approach to recusal and disqualification ofjudges heavily

The current approach to recusal and disqualification
of judges heavily emphasizes appearance-based
analysis. Professional codes of conduct for judges
typically focus on the avoidance of both impropriety and
(5) the appearance of impropriety. Judges are expected
to recuse (i.e., remove) themselves from any case in
which their impartiality might reasonably be questioned.
In some jurisdictions, statutes allow a party to a court
proceeding to request disqualification of a judge for
(10) bias. In other jurisdictions, the responsibility for
recusal falls upon the judge alone.

The rules provide vague guidance at best, making
disqualification dependent on whether the judge's
impartiality "might reasonably be questioned,"
(15) without giving any idea of whose perspective to take
or how to interpret the facts. It is a mistake for rules
governing judicial ethics to focus on the appearance
ofjustice rather than on the elimination of bias that
renders a judge cognitively incapable of properly
(20) reaching a just outcome because of a too-close
personal involvement in the matter before the court.
Focusing on appearances may cause sources of actual
bias that are not apparent to outside observers, or even
to judge themselves, to be overlooked.

(25) The function of the law is the settlement of
normative disputes. Such settlement will work only if
it is well reasoned. The achievement of actual justice
by the use of legal reasoning is the primary function of
judges. Therefore, the best way to address concerns
(30) about judicial impartiality is to require judges to make
their reasoning transparent. Accordingly, we should
eliminate disqualification motions alleging bias,
whether actual or apparent. This unreliable mechanism
should be replaced by the requirement of a written
(35) explanation of either the reasons for a judge's
decision to recuse, or if the judge decides against recusal,
the legal basis for the judgment reached, based on the
merits of the case. That is, judges should not be
required to explain why they did not recuse themselves,
(40) but rather they should be required to show the legal
reasoning on the basis of which their ultimate
judgments were made.

A potential objection is that the reasoning given
by the judge, however legally adequate, may not be the
(45) judge's real reasoning, thus allowing for the presence
ofwidetected bias. However, as long as a knowledgeable
observer cannot find any fault with the legal reasoning
provided, then there are no grounds for complaint. Under
the law, a right of recourse arises only if harm accrues.
(50) If a judge who had no improper considerations
in mind could have reached the same conclusion
for the reasons stated by a judge who had hidden
reasons in mind, then there is no harm on which to
base a complaint.

1. According to the passage, a weakness of current rules regarding recusal and disqualification is that they

(A) interfere with judges' reasoning about the cases that they hear
(B) fail to specify whose perspective is relevant to determining apparent bias
(C) exaggerate the importance of transparency in judicial reasoning
(D) place responsibility for recusal entirely on judges
(E) ignore the importance of the appearance of propriety


2. Which one of the following most accurately expresses the primary purpose of the second paragraph?

(A) to state the author's objections to the approach described in the first paragraph
(B) to present a solution that is rejected in the third paragraph
(C) to provide concrete examples of the problems discussed in the first paragraph
(D) to explore the history that led to the situation described in the first paragraph
(E) to state the thesis to be defended in the rest of the passage


3. The author of the passage regards the legal principle that "a right of recourse arises only if harm accrues" (lines 49-50) as

(A) an established principle of law
(B) part of the definition of the function of the law
(C) a tool for judges to disguise their real reasoning
(D) unfair to parties to legal proceedings
(E) central to the current means of addressing judicial bias


4. It can be inferred from the passage that the author would be most likely to consider which one of the following to be a weakness of statutes that allow parties to court proceedings to request disqualification of judges for bias?

(A) The guidelines for applying such statutes are excessively rigid.
(B) Such statutes are incompatible with a requirement that judges make their reasoning transparent.
(C) Such statutes can fail to eliminate actual bias because parties to court proceedings are not always aware of judges' prejudices.
(D) Such statutes conflict with professional codes of conduct that require judges to recuse themselves if they believe that they are biased.
(E) There is no guarantee that all requests for disqualification of judges will be granted.


5. The passage suggests that if judges are required to provide written explanations for the legal reasoning underlying their decisions about cases, then

(A) judicial bias will be almost completely eliminated
(B) any faulty reasoning employed by judges can in principle be detected
(C) judges' written explanations will usually conceal their real reasoning
(D) the public perception of the impartiality of the judiciary will improve
(E) judges will be motivated to recuse themselves when there is an appearance of bias


6. Which one of the following would be an example of the kind of "real reasoning" referred to in the first sentence of the last paragraph of the passage?

(A) the reasoning leading to a judge's decision against recusal
(B) an argument that is too technical to be understood by someone without formal legal training
(C) reasoning that is motivated by the judge's personal animus against a defendant
(D) reasoning that a knowledgeable observer cannot find any fault with
(E) a central legal principle referred to in a judge's written explanation


7. The author would be most likely to consider which one of the following to be an accurate description of the effects of the current approach to recusal and disqualification of judges?

(A) The standards in place fail to assure the general public that the legal system is adequately protected against judicial bias.
(B) The professional codes of conduct for judges are considered meddlesome and ineffective by many judges.
(C) Judges are rarely removed from cases for bias when they are not actually biased, but they are allowed to sit on many cases even though they are biased.
(D) Judges are rarely allowed to sit on cases when they are biased, but judges are removed from many cases for bias even though they are not actually biased.
(E) Judges are sometimes removed from cases for bias even though they are not actually biased, while some instances of judicial bias occur and are never detected.