Ethics

I have not thought about this issue nearly as deeply as Sarah has, but nevertheless I find puzzling the challenge to the appearance-based standard for judicial recusal.  Doesn't appearance matter a lot, not just as a proxy for actual bias, but as bearing a causal relationship to public confidence in judicial impartiality?  And isn't that public confidence a key component of the rule of law?

If appearance is thrown out the window, and we have to wait for a showing (or an admission) of actual bias, it seems that we've eviscerated the recusal inquiry.  Given human nature and the indeterminacy of legal reasoning, how many judges will admit to bias, or will write opinions for which their own bias is the only plausible rationale for the result?

Sure, the appearance of bias is in the eye of the beholder, and thus the facts on which recusal is warranted will shift along with social norms.  But isn't that flexibility a necessary part of maintaining confidence in the rule of law?  If the defendant in the obscenity trial is pushing the envelope of what society will tolerate, it seems highly relevant that (if it proves to be the case) the presiding judge is known to share the defendant's view, against the great weight of public opinion, that such images are "part of life" and even "funny" -- to such an extent that he collects them and shares them with others.  The relevance is two-fold: he might, in fact, be predisposed to resist the imposition of legal norms that reflect the limits of public tolerance for such images; and perhaps even more pressing, his public disclosure of his enthusiasm for such images undermines public confidence that the judge has applied the law.

To take another example, imagine that a judge is presiding over a trial raising the question of whether a government actor's waterboarding of a detainee constitutes torture under the relevant statutes.  On the eve of trial, the judge blogs about the fun he and his buddies have had waterboarding each other on guys' nights out, noting the "thrill" of the experience and the "lack of real danger, provided you trust your friends to administer it correctly."  When questioned about the blog entry by a reporter, he responds "I have no problem presiding over this case; statutory interpretation has nothing to do with my own personal views or experience.  I am obsessively impartial in my judging."

Is recusal appropriate?  Is this judge any less likely, based on his personal experience, to find waterboarding equivalent to torture than Judge Kozinski is to find the images at issue "patently offensive" under Miller given his own experience?  Given that the waterboarding judge is flouting widely held social norms regarding behavior that is at the center of the trial, isn't public skepticism about his impartiality reasonable?  If recusal is appropriate for the waterboarding judge, isn't this an appearance-based standard?   

UPDATE: Larry Lessig makes the most persuasive case in defense of Judge Kozinski I've seen thus far (HT: Volokh), though I still need some convincing on the broader point regarding the imprudence of appearance-based recusal standards.