Document Type

Article

Publication Date

2009

Abstract

The duty to sit concept or “doctrine”—or at least what I term the “pernicious” version of the concept—emphasizes a judge's obligation to hear and decide cases unless there is a compelling ground for disqualification and creates a situation in which judges are erroneously pushed to resolve close disqualification issues against recusal when the presumption should run in exactly the opposite direction. In close cases, judges should err on the side of recusal in order to enhance public confidence in the judiciary and to ensure that subtle, subconscious, or hard-to-prove bias, prejudice, or partiality does not influence decision-making. The pernicious version of the duty to sit concept pushes judges in exactly the wrong direction, suggesting that they should decline to preside only if the grounds for disqualification are undeniably clear. And, unfortunately, some judges appear capable of denying even a compelling case for disqualification. In some cases, the doctrine has been used to justify continued participation in cases where disqualification was required. In other cases, the doctrine has encouraged judges to continue to preside in cases where disqualification would have been the better course.

Publication Citation

57 Buff. L. Rev. 813 (2009).