LSAT 143, Section 2, RC Passage 2, Judicial Bias

This is an explanation for passage 2 of LSAT preptest 75, the June 2015 LSAT. This passage is about judicial bias and the rules for recusing judges. The author discusses flaws in the current rules and how to improve the system.

This section has paragraph summaries and an analysis of the passage, links to the explanations for the questions are below.

Paragraph Summaries

1. Current rules on recusal emphasize the appearance of bias, rather than actual bias.
2. Some bias may not be observable. Focussing on the appearance of bias will miss this.
3. We shouldn’t have motions to remove judges based on the appearance of bias. Instead we should require written reasons for judgements.
4. There may be bias in written reasons. But as long as there is no problem with the legal reasoning, there is no harm. We can only complain about the result if there is harm.

Analysis

This argument makes some good points, but is also quite naive. I had more trouble than usual on the questions because I found the argument lacking.

The argument starts by explaining how we currently do recusal. Then it argues for a change. There are a lot of details in the passage. It doesn’t make sense to memorize them, but you do need to know where they are. For instance, if a question asks about how to get a judge to recuse themselves, you should know to look in paragraphs 1 and 2.

Recusal refers to removing yourself from judging a case because you’ll be biased. Current regulations focus on the appearance of bias, rather than bias itself (though of course the two often overlap). The passage doesn’t explicitly state the reason for this focus on appearance, but the reasons probably are:

1. It is easier to prove the appearance of bias than to prove bias itself. Many cases of appearance will involve actual bias too. Therefore, eliminating appearance will eliminate many cases of actual bias we couldn’t otherwise catch.
2. People must believe in the fairness of justice. Allowing the appearance of bias will undermine the justice system.

Of course, the actual reasons aren’t important – I’m just speculating. Just know that there would be some argument in favor of the status quo.

The author makes a good criticism of the current recusal system: some cases of bias will never produce an appearance of bias. The current rules will fail to stop these cases.

The author proposes requiring written reasons to eliminate this problem. This may be surprising. You might have assumed that all judgements already require written reasons.

Not so. Higher court judgements such as those of the Supreme Court typically have written reasons. But lower court judgements often have only oral reasons and these may not fully lay out the judge’s reasoning. Most trials are lower court trials, so this is actually a wide-ranging proposal. Requiring written reasons in all cases would be a major change.

The final paragraph shows why the author thinks written reasons would solve the problem: we could then examine the judge’s reasoning to see if it was legally valid. Even if there were bias, there could be no harm as long as the reasoning was legally sound. There is something to this. Written reasons would certainly make it easier to get rid of legally wrong judgements that occurred due to bias.

Note: The next two paragraphs explain what’s wrong with the proposal. You don’t need to know this to get the questions right – this is only a point of interest.

The major problem with this proposal is that there are usually many gray areas in legal judgments. It many cases, it’s possible to write a legally sound judgement for or against either side. Therefore bias would let a judge tip the scales without doing anything legally unsound.

For instance, consider sentencing. It might be very clear that a robbery occurred, and no amount of bias would let a judge decide the defendant was innocent. However, bias could show up in the length of sentencing – most sentencing decisions have a range of legally allowable outcomes.

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