OCTOBER TERM, 1993
Syllabus
LITEKY ET AL.
v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT
No.92-6921. Argued November 3, 1993-Decided March 7,1994
Before and during petitioners' 1991 trial on federal criminal
charges, the District Judge denied defense motions that he recuse
himself pursuant to 28 U. S. C. § 455(a), which requires a federal
judge to "disqualify himself in any proceeding in which his
impartiality might reasonably be questioned." The first motion was
based on rulings and statements this same judge made, which
allegedly displayed impatience, disregard, and animosity toward the
defense, during and after petitioner Bourgeois' 1983 bench trial on
similar charges. The second motion was founded on the judge's
admonishment of Bourgeois' counsel and codefendants in front of the
jury at the 1991 trial. In affirming petitioners' convictions, the
Court of Appeals agreed with the District Judge that matters
arising from judicial proceedings are not a proper basis for
recusal.
Held: Required recusal under § 455(a) is subject to the
limitation that has come to be known as the "extrajudicial source"
doctrine. Pp. 543-556.
(a) The doctrine-see
United States v.
Grinnell
Corp., 384 U. S.
563, 583-applies to § 455(a). It was developed under § 144,
which requires disqualification for "personal bias or prejudice."
That phrase is repeated as a recusal ground in § 455(b)(1), and §
455(a), addressing disqualification for appearance of partiality,
also covers "bias or prejudice." The absence of the word "personal"
in § 455(a) does not preclude the doctrine's application, since the
textual basis for the doctrine is the pejorative connotation of the
words "bias or prejudice," which indicate a judicial predisposition
that is
wrongful or
inappropriate. Similarly, because
the term "partiality" refers only to such favoritism as is, for
some reason, wrongful or inappropriate, § 455(a)'s requirement of
recusal
whenever there exists a genuine question concerning
a judge's impartiality does not preclude the doctrine's
application. A contrary finding would cause the statute, in a
significant sense, to contradict itself, since (petitioners
acknowledge) § 455(b)(1) embodies the doctrine, and § 455(a)
duplicates § 455(b)'s protection with regard to "bias and
prejudice." Pp. 543-553.
(b) However, it is better to speak of the existence of an
"extrajudicial source"
factor, than of a
doctrine,
because the presence of such a source does not necessarily
establish bias, and its absence does not necessarily
541
preclude bias. The consequences of that factor are twofold for
purposes of this case. First, judicial rulings alone almost never
constitute valid basis for a bias or partiality recusal motion. See
Grinnell, supra, at 583. Apart from surrounding comments or
accompanying opinion, they cannot possibly show reliance on an
extrajudicial source; and, absent such reliance, they require
recusal only when they evidence such deepseated favoritism or
antagonism as would make fair judgment impossible. Second, opinions
formed by the judge on the basis of facts introduced or events
occurring during current or prior proceedings are not grounds for a
recusal motion unless they display a similar degree of favoritism
or antagonism. pp. 554-556.
(c) Application of the foregoing principles to the facts of this
case demonstrates that none of the grounds petitioners assert
required disqualification. They all consist of judicial rulings,
routine trial administration efforts, and ordinary admonishments
(whether or not legally supportable) to counsel and to witnesses.
All occurred in the course of judicial proceedings,
and
neither (1) relied upon knowledge acquired outside such proceedings
nor (2) displayed deep-seated and unequivocal antagonism that would
render fair judgment impossible. P. 556.
973 F.2d
910, affirmed.
SCALIA, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, THOMAS, and GINSBURG, JJ., joined.
KENNEDY, J., filed an opinion concurring in the judgment, in which
BLACKMUN, STEVENS, and SOUTER, JJ., joined,
post, p.
557.
Peter Thompson, by appointment of the Court, 509 U. S.
920, argued the cause and filed briefs for petitioners.
Thomas G. Hungar argued the cause for the United States. With
him on the brief were Solicitor General Days, Acting Assistant
Attorney General Keeney, Deputy Solicitor General Bryson, and Joel
M. Gershowitz.
JUSTICE SCALIA delivered the opinion of the Court. Section
455(a) of Title 28 of the United States Code requires a federal
judge to "disqualify himself in any proceeding in which his
impartiality might reasonably be questioned." This case presents
the question whether required recusal under this provision is
subject to the limitation that has come to be known as the
"extrajudicial source" doctrine.
542
I
In the 1991 trial at issue here, petitioners were charged with
willful destruction of property of the United States in violation
of 18 U. S. C. § 1361. The indictment alleged that they had
committed acts of vandalism, including the spilling of human blood
on walls and various objects, at the Fort Benning Military
Reservation. Before trial petitioners moved to disqualify the
District Judge pursuant to 28 U. S. C. § 455(a). The motion relied
on events that had occurred during and immediately after an earlier
trial, involving petitioner Bourgeois, before the same District
Judge.
In the 1983 bench trial, Bourgeois, a Catholic priest of the
Maryknoll order, had been tried and convicted of various
misdemeanors committed during a protest action, also on the federal
enclave of Fort Benning. Petitioners claimed that recusal was
required in the present case because the judge had displayed
"impatience, disregard for the defense and animosity" toward
Bourgeois, Bourgeois' codefendants, and their beliefs. The alleged
evidence of that included the following words and acts by the
judge: stating at the outset of the trial that its purpose was to
try a criminal case and not to provide a political forum; observing
after Bourgeois' opening statement (which described the purpose of
his protest) that the statement ought to have been directed toward
the anticipated evidentiary showing; limiting defense counsel's
crossexamination; questioning witnesses; periodically cautioning
defense counsel to confine his questions to issues material to
trial; similarly admonishing witnesses to keep answers responsive
to actual questions directed to material issues; admonishing
Bourgeois that closing argument was not a time for "making a
speech" in a "political forum"; and giving Bourgeois what
petitioners considered to be an excessive sentence. The final
asserted ground for disqualificationand the one that counsel for
petitioners described at oral argument as the most serious-was the
judge's interruption of the closing argument of one of Bourgeois'
codefendants,
543
instructing him to cease the introduction of new facts, and to
restrict himself to discussion of evidence already presented.
The District Judge denied petitioners' disqualification motion,
stating that matters arising from judicial proceedings were not a
proper basis for recusal. At the outset of the trial, Bourgeois'
counsel informed the judge that he intended to focus his defense on
the political motivation for petitioners' actions, which was to
protest United States Government involvement in EI Salvador. The
judge said that he would allow petitioners to state their political
purposes in opening argument and to testify about them as well, but
that he would not allow long speeches or discussions concerning
Government policy. When, in the course of opening argument,
Bourgeois' counsel began to explain the circumstances surrounding
certain events in EI Salvador, the prosecutor objected, and the
judge stated that he would not allow discussion about events in EI
Salvador. He then instructed defense counsel to limit his remarks
to what he expected the evidence to show. At the close of the
prosecution's case, Bourgeois renewed his disqualification motion,
adding as grounds for it the District Judge's "admonishing [him] in
front of the jury" regarding the opening statement, and the
District Judge's unspecified "admonishing [of] others," in
particular Bourgeois' two
pro se codefendants. The motion
was again denied. Petitioners were convicted of the offense
charged.
Petitioners appealed, claiming that the District Judge violated
28 U. S. C. § 455(a) in refusing to recuse himself. The Eleventh
Circuit affirmed the convictions, agreeing with the District Court
that "matters arising out of the course of judicial proceedings are
not a proper basis for recusal."
973 F.2d
910 (1992). We granted certiorari. 508 U. S. 939 (1993).
II
Required judicial recusal for bias did not exist in England at
the time of Blackstone. 3 W. Blackstone, Commentaries
544
*361. Since 1792, federal statutes have compelled district
judges to recuse themselves when they have an interest in the suit,
or have been counsel to a party. See Act of May 8, 1792, ch. 36, §
11, 1 Stat. 278. In 1821, the basis of recusal was expanded to
include all judicial relationship or connection with a party that
would in the judge's opinion make it improper to sit. Act of Mar.
3, 1821, ch. 51, 3 Stat. 643. Not until 1911, however, was a
provision enacted requiring district-judge recusal for bias
in
general. In its current form, codified at 28 U. S. C. § 144,
that provision reads as follows:
"Whenever a party to any proceeding in a district court makes
and files a timely and sufficient affidavit that the judge before
whom the matter is pending has a personal bias or prejudice either
against him or in favor of any adverse party, such judge shall
proceed no further therein, but another judge shall be assigned to
hear such proceeding.
"The affidavit shall state the facts and the reasons for the
belief that bias or prejudice exists, and shall be filed not less
than ten days before the beginning of the term at which the
proceeding is to be heard, or good cause shall be shown for failure
to file it within such time. A party may file only one such
affidavit in any case. It shall be accompanied by a certificate of
counsel of record stating that it is made in good faith."
Under § 144 and its predecessor, there came to be generally
applied in the courts of appeals a doctrine, more standard in its
formulation than clear in its application, requiring-to take its
classic formulation found in an oft-cited opinion by Justice
Douglas for this Court-that "[t]he alleged bias and prejudice to be
disqualifying [under § 144] must stem from an extrajudicial
source."
United States v.
Grinnell Corp., 384 U. S. 563, 583
(1966). We say that the doctrine was less than entirely clear in
its application for
545
several reasons. First,
Grinnell (the only opinion of
ours to recite the doctrine) clearly meant by "extrajudicial
source" a source outside the judicial proceeding at hand-which
would include as extrajudicial sources earlier judicial proceedings
conducted by the same judge (as are at issue here).! Yet many,
perhaps most, Courts of Appeals considered knowledge (and the
resulting attitudes) that a judge properly acquired in an earlier
proceeding
not to be "extrajudicial." See,
e. g.,
Lyons v.
United States, 325 F.2d
370, 376 (CA9), cert. denied, 377 U. S. 969 (1964);
Craven v.
United States, 22 F.2d 605, 607-608 (CA1
1927). Secondly, the doctrine was often quoted as justifying the
refusal to consider trial
rulings as the basis for § 144
recusal. See,
e. g., Toth v.
Trans World Airlines,
Inc., 862 F.2d
1381, 1387-1388 (CA9 1988);
Liberty Lobby, Inc. v.
Dow Jones &
Co., 838 F.2d
1287, 1301 (CADC), cert. denied, 488 U. S. 825 (1988). But
trial
rulings have a judicial
expression rather than
a judicial
source. They may well be based upon extrajudicial
knowledge or motives. Cf.
In re International Business Machines
Corp., 618 F.2d
923, 928, n. 6 (CA2 1980). And finally, even in cases in which
the "source" of the bias or prejudice was clearly the proceedings
themselves (for example, testimony introduced or an event occurring
at trial which produced unsuppressible judicial animosity), the
supposed doctrine would not necessarily be applied. See,
e. g.,
Davis v.
Board of School Comm'rs of Mobile County,
517 F.2d
1044, 1051 (CA5 1975) (doctrine has "pervasive bias"
exception), cert. denied, 425 U. S. 944 (1976);
1 That is clear when the language from
Grinnell excerpted
above is expanded to include its entire context: "The alleged bias
and prejudice to be disqualifying must stem from an extrajudicial
source and result in an opinion on the merits on some basis other
than what the judge learned from his participation in the case.
Berger v.
United States, 255 U. S. 22, 31. Any
adverse attitudes that [the district judge in the present case]
evinced toward the defendants were based on his study of the
depositions and briefs which the parties had requested him to
make." 384 U. S., at 583. The cited case,
Berger, had found
recusal required on the basis of judicial remarks made in an
earlier proceeding.
546
Rice v.
McKenzie, 581 F.2d
1114, 1118 (CA4 1978) (doctrine "has always had
limitations").
Whatever the precise contours of the "extrajudicial source"
doctrine (a subject to which we will revert shortly), it is the
contention of petitioners that the doctrine has no application to §
455(a). Most Courts of Appeals to consider the matter have rejected
this contention, see
United States v.
Barry,
961 F.2d
260, 263 (CADC 1992);
United States v.
Sammons,
918 F.2d
592,599 (CA6 1990);
McWhorter v.
Birmingham,
906 F.2d
674, 678 (CAll 1990);
United States v.
Mitchell,
886 F.2d
667, 671 (CA4 1989);
United States v.
Merkt,
794 F.2d
950, 960 (CA5 1986), cert. denied, 480 U. S. 946 (1987);
Johnson v.
Trueblood, 629 F.2d
287, 290-291 (CA3 1980), cert. denied, 450 U. S. 999 (1981);
United States v.
Sibla, 624 F.2d
864, 869 (CA9 1980). Some, however, have agreed with it, see
United States v.
Chantal, 902 F.2d
1018, 1023-1024 (CA1 1990); cf.
United States v.
Coven, 662 F.2d
162, 168-169 (CA2 1981) (semble), cert. denied, 456 U. S. 916
(1982). To understand the arguments pro and con it is necessary to
appreciate the major changes in prior law effected by the revision
of § 455 in 1974.
Before 1974, § 455 was nothing more than the then-current
version of the 1821 prohibition against a judge's presiding who has
an interest in the case or a relationship to a party. It read,
quite simply:
"Any justice or judge of the United States shall disqualify
himself in any case in which he has a substantial interest, has
been of counsel, is or has been a material witness, or is so
related to or connected with any party or his attorney as to render
it improper, in his opinion, for him to sit on the trial, appeal,
or other proceeding therein." 28 U. S. C. § 455 (1970 ed.).
The 1974 revision made massive changes, so that §455 now reads
as follows:
547
"(a) Any justice, judge, or magistrate of the United States
shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned. "(b) He shall also
disqualify himself in the following circumstances:
"(1) Where he has a personal bias or prejudice concerning a
party, or personal knowledge of disputed evidentiary facts
concerning the proceeding;
"(2) Where in private practice he served as lawyer in the matter
in controversy, or a lawyer with whom he previously practiced law
served during such association as a lawyer concerning the matter,
or the judge or such lawyer has been a material witness concerning
it;
"(3) Where he has served in governmental employment and in such
capacity participated as counsel, adviser or material witness
concerning the proceeding or expressed an opinion concerning the
merits of the particular case in controversy;
"(4) He knows that he, individually or as a fiduciary, or his
spouse or minor child residing in his household, has a financial
interest in the subject matter in controversy or in a party to the
proceeding, or any other interest that could be substantially
affected by the outcome of the proceeding;
"(5) He or his spouse, or a person within the third degree of
relationship to either of them, or the spouse of such a person:
"(i) Is a party to the proceeding, or an officer, director, or
trustee of a party;
"(ii) Is acting as a lawyer in the proceeding;
"(iii) Is known by the judge to have an interest that could be
substantially affected by the outcome of the proceeding;
"(iv) Is to the judge's knowledge likely to be a material
witness in the proceeding."
548
Almost all of the revision (paragraphs (b)(2) through (b)(5))
merely rendered objective and spelled out in detail the "interest"
and "relationship" grounds of recusal that had previously been
covered by § 455. But the other two paragraphs of the revision
brought into § 455 elements of general "bias and prejudice" recusal
that had previously been addressed only by § 144. Specifically,
paragraph (b)(l) entirely duplicated the grounds of recusal set
forth in § 144 ("bias or prejudice"), but (1) made them applicable
to
all justices, judges, and magistrates (and not just
district judges), and (2) placed the obligation to identify the
existence of those grounds upon the judge himself, rather than
requiring recusal only in response to a party affidavit.
Subsection (a), the provision at issue here, was an entirely new
"catchall" recusal provision, covering both "interest or
relationship" and "bias or prejudice" grounds, see
Liljeberg
v.
Health Services Acquisition Corp., 486 U. S. 847 (1988)but
requiring them
all to be evaluated on an
objective
basis, so that what matters is not the reality of bias or prejudice
but its appearance. Quite simply and quite universally, recusal was
required whenever "impartiality might reasonably be
questioned."
What effect these changes had upon the "extrajudicial source"
doctrine-whether they in effect render it obsolete, of continuing
relevance only to § 144, which seems to be properly invocable only
when § 455(a) can be invoked anywaydepends upon what the basis for
that doctrine was. Petitioners suggest that it consisted of the
limitation of § 144 to
"personal bias or prejudice," bias or
prejudice officially acquired being different from "personal" bias
or prejudice. And, petitioners point out, while § 455(b)(1) retains
the phrase "personal bias or prejudice," § 455(a) proscribes all
partiality, not merely the "personal" sort.
It is true that a number of Courts of Appeals have relied upon
the word "personal" in restricting § 144 to extrajudicial sources,
see,
e. g., Craven v.
United States, 22 F.2d 605,
607-
549
608 (GAl 1927);
Ferrari v.
United States, 169 F.2d
353, 355 (GA9 1948). And several cases have cited the absence of
that word as a reason for excluding that restriction from § 455(a),
see
United States v.
Coven, supra, at 168, cert.
denied, 456 U. S. 916 (1982);
Panzardi-Alvarez v.
United
States, 879 F.2d
975, 983-984, and n. 6 (GAl), cert. denied, 493 U. S. 1082
(1989). It seems to us, however, that that mistakes the basis for
the "extrajudicial source" doctrine. Petitioners' suggestion that
we relied upon the word "personal" in our
Grinnell opinion
is simply in error. The only reason
Grinnell gave for its
"extrajudicial source" holding was citation of our opinion almost
half a century earlier in
Berger v.
United States,
255 U. S. 22
(1921). But that case, and the case which it in turn cited,
Ex
parte American Steel Barrel Co., 230 U. S. 35 (1913),
relied not upon the word "personal" in § 144, but upon its
provision requiring the recusal affidavit to be filed 10 days
before the beginning of the court term. That requirement was the
reason we found it obvious in
Berger that the affidavit
"must be based upon facts antedating the trial, not those occurring
during the trial," 255 U. S., at 34; and the reason we said in
American Steel Barrel that the recusal statute "was never
intended to enable a discontented litigant to oust a judge because
of adverse rulings made, ... but to prevent his future action in
the pending cause," 230 U. S., at 44.
In our view, the proper (though unexpressed) rationale for
Grinnell, and the basis of the modern "extrajudicial source"
doctrine, is not the statutory term "personal"-for several reasons.
First and foremost, that explanation is simply not the semantic
success it pretends to be. Bias and prejudice seem to us not
divided into the "personal" kind, which is offensive, and the
official kind, which is perfectly all right. As generally used,
these are pejorative terms, describing dispositions that are
never appropriate. It is common to speak of "personal bias"
or "personal prejudice" without meaning the adjective to do
anything except emphasize the
550
idiosyncratic nature of bias and prejudice, and certainly
without implying that there is some other "nonpersonal," benign
category of those mental states. In a similar vein, one speaks of
an individual's "personal preference," without implying that he
could also have a "nonpersonal preference." Secondly, interpreting
the term "personal" to create a complete dichotomy between
court-acquired and extrinsically acquired bias produces results so
intolerable as to be absurd. Imagine, for example, a lengthy trial
in which the presiding judge for the first time learns of an
obscure religious sect, and acquires a passionate hatred for all
its adherents. This would be "official" rather than "personal"
bias, and would provide no basis for the judge's recusing
himself.
It seems to us that the origin of the "extrajudicial source"
doctrine, and the key to understanding its flexible scope (or the
so-called "exceptions" to it), is simply the pejorative connotation
of the words "bias or prejudice." Not
all unfavorable
disposition towards an individual (or his case) is properly
described by those terms. One would not say, for example, that
world opinion is biased or prejudiced against Adolf Hitler. The
words connote a favorable or unfavorable disposition or opinion
that is somehow
wrongful or
inappropriate, either
because it is undeserved, or because it rests upon knowledge that
the subject ought not to possess (for example, a criminal juror who
has been biased or prejudiced by receipt of inadmissible evidence
concerning the defendant's prior criminal activities), or because
it is excessive in degree (for example, a criminal juror who is so
inflamed by properly admitted evidence of a defendant's prior
criminal activities that he will vote guilty regardless of the
facts). The "extrajudicial source" doctrine is one application of
this pejorativeness requirement to the terms "bias" and "prejudice"
as they are used in §§ 144 and 455(b)(1) with specific reference to
the work of judges.
The judge who presides at a trial may, upon completion of the
evidence, be exceedingly ill disposed towards the defend-
551
ant, who has been shown to be a thoroughly reprehensible person.
But the judge is not thereby recusable for bias or prejudice, since
his knowledge and the opinion it produced were properly and
necessarily acquired in the course of the proceedings, and are
indeed sometimes (as in a bench trial) necessary to completion of
the judge's task. As Judge Jerome Frank pithily put it:
"Impartiality is not gullibility. Disinterestedness does not mean
child-like innocence. If the judge did not form judgments of the
actors in those court-house dramas called trials, he could never
render decisions."
In re J. P. Linahan, Inc.,
138 F.2d 650, 654 (CA2 1943). Also not subject to deprecatory
characterization as "bias" or "prejudice" are opinions held by
judges as a result of what they learned in earlier proceedings. It
has long been regarded as normal and proper for a judge to sit in
the same case upon its remand, and to sit in successive trials
involving the same defendant.
It is wrong in theory, though it may not be too far off the mark
as a practical matter, to suggest, as many opinions have, that
"extrajudicial source" is the
only basis for establishing
disqualifying bias or prejudice. It is the only
common
basis, but not the exclusive one, since it is not the
exclusive reason a predisposition can be wrongful or
inappropriate. A favorable or unfavorable predisposition can also
deserve to be characterized as "bias" or "prejudice" because, even
though it springs from the facts adduced or the events occurring at
trial, it is so extreme as to display clear inability to render
fair judgment. (That explains what some courts have called the
"pervasive bias" exception to the "extrajudicial source" doctrine.
See,
e. g., Davis v.
Board of School
Comm'rs of Mobile County, 517 F.2d
1044, 1051 (CA5 1975), cert. denied, 425 U. S. 944 (1976).)
With this understanding of the "extrajudicial source" limitation
in §§ 144 and 455(b)(1), we turn to the question whether it appears
in § 455(a) as well. Petitioners' argument for the negative based
upon the mere absence of the
552
word "personal" is, for the reasons described above, not
persuasive. Petitioners also rely upon the categorical nature of §
455's language: Recusal is required
whenever there exists a
genuine question concerning a judge's impartiality, and not merely
when the question arises from an extrajudicial source. A similar
"plain-language" argument could be made, however, with regard to §§
144 and 455(b)(1): They apply
whenever bias or prejudice
exists, and not merely when it derives from an extrajudicial
source. As we have described, the latter argument is invalid
because the pejorative connotation of the terms "bias" and
"prejudice" demands that they be applied only to judicial
predispositions that go beyond what is normal and acceptable. We
think there is an equivalent pejorative connotation, with
equivalent consequences, to the term "partiality." See American
Heritage Dictionary 1319 (3d ed. 1992) ("partiality" defined as
"[f]avorable prejudice or bias"). A prospective juror in an
insurance-claim case may be stricken as partial if he always votes
for insurance companies; but not if he always votes for the party
whom the terms of the contract support. "Partiality" does not refer
to all favoritism, but only to such as is, for some reason,
wrongful or inappropriate. Impartiality is not gullibility.
Moreover, even if the pejorative connotation of "partiality" were
not enough to import the "extrajudicial source" doctrine into §
455(a), the "reasonableness" limitation (recusal is required only
if the judge's impartiality "might
reasonably be
questioned") would have the same effect. To demand the sort of
"child-like innocence" that elimination of the "extrajudicial
source" limitation would require is not reasonable.
Declining to find in the language of § 455(a) a limitation which
(petitioners acknowledge)
is contained in the language of §
455(b)(1) would cause the statute, in a significant sense, to
contradict itself. As we have described, § 455(a) expands the
protection of § 455(b), but duplicates some of its protection as
well-not only with regard to bias and prejudice but also with
regard to interest and relationship. Within the
553
area of overlap, it is unreasonable to interpret § 455(a)
(unless the language
requires it) as implicitly eliminating
a limitation explicitly set forth in § 455(b). It would obviously
be wrong, for example, to hold that "impartiality could reasonably
be questioned" simply because one of the parties is in the fourth
degree of relationship to the judge. Section 455(b)(5), which
addresses the matter of relationship specifically, ends the
disability at the
third degree of relationship, and that
should obviously govern for purposes of § 455(a) as well.
Similarly, § 455(b)(1), which addresses the matter of personal bias
and prejudice specifically, contains the "extrajudicial source"
limitation-and
that limitation (since nothing in the text
contradicts it) should govern for purposes of § 455(a) as
welI.2
2JUSTICE KENNEDY asserts that what we have said in this
paragraph contradicts the proposition, established in
Liljeberg v.
Health Services Acquisition Corp.,
486 U. S. 847
(1988), that "subsections (a) and (b), while addressing many of the
same underlying circumstances, are autonomous in operation."
Post, at 566.
Liljeberg established no such thing. It
established that subsection (a) requires recusal in some
circumstances where subsection (b) does not-but that is something
quite different from "autonomy," which in the context in which
JUSTICE KENNEDY uses it means that the one subsection is to be
interpreted and applied without reference to the other.
It is correct that subsection (a) has a "broader reach" than
subsection (b),
post, at 567, but the provisions obviously
have some ground in common as well, and should not be applied
inconsistently there.
Liljeberg concerned a respect in which
subsection (a)
did go beyond (b). Since subsection (a) deals
with the
objective appearance of partiality, any limitations
contained in (b) that consist of a subjective-knowledge requirement
are obviously inapplicable. Subsection (a) also goes beyond (b) in
another important respect: It covers
all aspects of
partiality, and not merely those specifically addressed in
subsection (b). However, when one of those aspects addressed in (b)
is at issue, it is poor statutory construction to interpret
(a) as nullifying the limitations (b) provides, except to the
extent the text requires. Thus, as we have said, under subsection
(a) as under (b)(5), fourth degree of kinship will not do.
What is at issue in the present case
is an aspect of
"partiality" already addressed in (b), personal bias or prejudice.
The "objective appearance" principle of subsection (a) makes
irrelevant the subjective limitation of
554
Petitioners suggest that applying the "extrajudicial source"
limitation to § 455(a) will cause disqualification of a trial judge
to be more easily obtainable upon remand of a case by an appellate
court than upon direct motion. We do not see why that necessarily
follows; and if it does, why it is necessarily bad. Federal
appellate courts' ability to assign a case to a different judge on
remand rests not on the recusal statutes alone, but on the
appellate courts' statutory power to "require such further
proceedings to be had as may be just under the circumstances," 28
U. S. C. § 2106. That may permit a different standard, and there
may be pragmatic reasons for a different standard. We do not say
so-but merely say that the standards applied on remand are
irrelevant to the question before us here.
For all these reasons, we think that the "extrajudicial source"
doctrine, as we have described it, applies to § 455(a). As we have
described it, however, there is not much doctrine to the doctrine.
The fact that an opinion held by a judge derives from a source
outside judicial proceedings is not a
necessary condition
for "bias or prejudice" recusal, since predispositions developed
during the course of a trial will sometimes (albeit rarely)
suffice. Nor is it a
sufficient condition for "bias or
prejudice" recusal, since
some opinions acquired outside the
context of judicial proceedings (for example, the judge's view of
the law acquired in scholarly reading) will
not suffice.
Since neither the presence of an extrajudicial source necessarily
establishes bias, nor the absence of an extrajudicial source
necessarily precludes bias, it would be
(b)(l): The judge does not have to be
subjectively biased
or prejudiced, so long as he
appears to be so. But nothing
in subsection (a) eliminates the longstanding limitation of (b)(l),
that "personal bias or prejudice" does not consist of a disposition
that fails to satisfy the "extrajudicial source" doctrine. The
objective appearance of an adverse disposition attributable to
information acquired in a prior trial is not an objective
appearance of personal bias or prejudice, and hence not an
objective appearance of improper partiality.
555
better to speak of the existence of a significant (and often
determinative) "extrajudicial source"
factor, than of an
"extrajudicial source"
doctrine, in recusal
jurisprudence.
The facts of the present case do not require us to describe the
consequences of that factor in complete detail. It is enough for
present purposes to say the following: First, judicial rulings
alone almost never constitute a valid basis for a bias or
partiality motion. See
United States v.
Grinnell
Corp., 384 U. S., at 583. In and of themselves (i.
e., apart
from surrounding comments or accompanying opinion), they cannot
possibly show reliance upon an extrajudicial source; and can only
in the rarest circumstances evidence the degree of favoritism or
antagonism required (as discussed below) when no extrajudicial
source is involved. Almost invariably, they are proper grounds for
appeal, not for recusal. Second, opinions formed by the judge on
the basis of facts introduced or events occurring in the course of
the current proceedings, or of prior proceedings, do not constitute
a basis for a bias or partiality motion unless they display a
deep-seated favoritism or antagonism that would make fair judgment
impossible. Thus, judicial remarks during the course of a trial
that are critical or disapproving of, or even hostile to, counsel,
the parties, or their cases, ordinarily do not support a bias or
partiality challenge. They
may do so if they reveal an
opinion that derives from an extrajudicial source; and they
will do so if they reveal such a high degree of favoritism
or antagonism as to make fair judgment impossible. An example of
the latter (and perhaps of the former as well) is the statement
that was alleged to have been made by the District Judge in
Berger v.
United States, 255 U. S. 22 (1921), a
World War I espionage case against German-American defendants:
"One must have a very judicial mind, indeed, not [to be]
prejudiced against the German Americans" because their "hearts are
reeking with disloyalty."
Id., at 28 (internal quotation
marks omitted).
Not establishing bias or partiality,
however, are expressions of impatience, dissatisfaction, annoy-
556
ance, and even anger, that are within the bounds of what
imperfect men and women, even after having been confirmed as
federal judges, sometimes display. A judge's ordinary efforts at
courtroom administration-even a stern and shorttempered judge's
ordinary efforts at courtroom administration-remain immune.
III
Applying the principles we have discussed to the facts of the
present case is not difficult. None of the grounds petitioners
assert required disqualification. As we have described,
petitioners' first recusal motion was based on rulings made, and
statements uttered, by the District Judge during and after the 1983
trial; and petitioner Bourgeois' second recusal motion was founded
on the judge's admonishment of Bourgeois' counsel and codefendants.
In their briefs here, petitioners have referred to additional
manifestations of alleged bias in the District Judge's conduct of
the trial below, including the questions he put to certain
witnesses, his alleged "anti-defendant tone," his cutting off of
testimony said to be relevant to defendants' state of mind, and his
post-trial refusal to allow petitioners to appeal
in forma
pauperis.3
All of these grounds are inadequate under the principles we have
described above: They consist of judicial rulings, routine trial
administration efforts, and ordinary admonishments (whether or not
legally supportable) to counsel and to witnesses. All occurred in
the course of judicial proceedings,
and neither (1) relied
upon knowledge acquired outside such proceedings nor (2) displayed
deep-seated and unequivocal antagonism that would render fair
judgment impossible.
The judgment of the Court of Appeals is
Affirmed.
3 Petitioners' brief also complains of the District Judge's
refusal in the 1983 trial to call petitioner Bourgeois "Father,"
asserting that this "subtly manifested animosity toward Father
Bourgeois." Brieffor Petitioners 30. As we have discussed, when
intrajudicial behavior is at issue, manifestations of animosity
must be much more than subtle to establish bias.
557
JUSTICE KENNEDY, with whom JUSTICE BLACKMUN, JUSTICE STEVENS,
and JUSTICE SOUTER join, concurring in the judgment.
The Court's ultimate holding that petitioners did not assert
sufficient grounds to disqualify the District Judge is
unexceptionable. Nevertheless, I confine my concurrence to the
judgment, for the Court's opinion announces a mistaken, unfortunate
precedent in two respects. First, it accords nearly dispositive
weight to the source of a judge's alleged partiality, to the point
of stating that disqualification for intrajudicial partiality is
not required unless it would make a fair hearing impossible.
Second, the Court weakens the principal disqualification statute in
the federal system, 28 U. S. C. § 455, by holding-contrary to our
most recent interpretation of the statute in
Liljeberg v.
Health Services Acquisition Corp., 486 U. S. 847 (1988)-that
the broad protections afforded by subsection (a) are qualified by
limitations explicit in the specific prohibitions of subsection
(b).
I
We took this case to decide whether the reach of § 455(a) is
limited by the so-called extrajudicial source rule. I agree with
the Court insofar as it recognizes that there is no
per se
rule requiring that the alleged partiality arise from an
extrajudicial source. In my view, however, the Court places undue
emphasis upon the source of the challenged mindset in determining
whether disqualification is mandated by §455(a).
A
Section 455(a) provides that a judge "shall disqualify himself
in any proceeding in which his impartiality might reasonably be
questioned." For present purposes, it should suffice to say that §
455(a) is triggered by an attitude or state of mind so resistant to
fair and dispassionate inquiry as to cause a party, the public, or
a reviewing court to have reasonable grounds to question the
neutral and objective character of a
558
KENNEDY, J., concurring in judgment
judge's rulings or findings. I think all would agree that a high
threshold is required to satisfy this standard. Thus, under §
455(a), a judge should be disqualified only if it appears that he
or she harbors an aversion, hostility or disposition of a kind that
a fair-minded person could not set aside when judging the
dispute.
The statute does not refer to the source of the disqualifying
partiality. And placing too much emphasis upon whether the source
is extrajudicial or intrajudicial distracts from the central
inquiry. One of the very objects of law is the impartiality of its
judges in fact and appearance. So in one sense it could be said
that any disqualifying state of mind must originate from a source
outside law itself. That metaphysical inquiry, however, is beside
the point. The relevant consideration under § 455(a) is the
appearance of partiality, see
Liljeberg, supra, at 860, not
where it originated or how it was disclosed. If, for instance, a
judge presiding over a retrial should state, based upon facts
adduced and opinions formed during the original cause, an intent to
ensure that one side or the other shall prevail, there can be
little doubt that he or she must recuse. Cf.
Rugenstein v.
Ottenheimer, 78 Ore. 371, 372, 152 P. 215, 216 (1915)
(reversing for judge's failure to disqualify himself on retrial,
where judge had stated: "'This case may be tried again, and it will
be tried before me. I will see to that. And I will see that the
woman gets another verdict and judgment that will stand' ").
I agree, then, with the Court's rejection of the
per se
rule applied by the Court of Appeals, which provides that "matters
arising out of the course of judicial proceedings are not a proper
basis for recusal" under § 455(a).
973 F.2d
910 (CAll 1992). But the Court proceeds to discern in the
statute an extrajudicial source interpretive doctrine, under which
the source of an alleged deep-seated predisposition is a primary
factor in the analysis. The Court's candid struggle to find a
persuasive rationale for this approach demonstrates that prior
attempts along those lines have fallen
559
somewhat short of the mark. This, I submit, is due to the fact
that the doctrine crept into the jurisprudence more by accident
than design.
The term "extrajudicial source," though not the interpretive
doctrine bearing its name, has appeared in only one of our previous
cases:
United States v.
Grinnell Corp., 384 U. S. 563 (1966).
Respondents in
Grinnell alleged that the trial judge had a
personal bias against them, and sought his disqualification and a
new trial under 28 U. S. C. § 144. That statute, like § 455(b)(1),
requires disqualification for "bias or prejudice." In denying
respondents' claim, the Court stated that "[t]he alleged bias and
prejudice to be disqualifying must stem from an extrajudicial
source and result in an opinion on the merits on some basis other
than what the judge learned from his participation in the case."
384 U. S., at 583.
Although
Grinnell's articulation of the extrajudicial
source rule has a categorical aspect about it, the decision, on
closer examination, proves not to erect a
per se barrier.
After reciting what appeared to be an absolute rule, the Court
proceeded to make a few additional points: that certain in-court
statements by the judge "reflected no more than his view that, if
the facts were as the Government alleged, stringent relief was
called for"; that during the trial the judge "repeatedly stated
that he had not made up his mind on the merits"; and that another
of the judge's challenged statements did not "manifes[t] a closed
mind on the merits of the case," but rather was "a terse way" of
reiterating a prior ruling.
Ibid. Had we meant the
extrajudicial source doctrine to be dispositive under § 144, those
further remarks would have been unnecessary.
More to the point,
Grinnell provides little justification
for its announcement of the extrajudicial source rule, relying only
upon a citation to
Berger v.
United States, 255 U. S. 22, 31 (1921).
The cited passage from
Berger, it turns out, does not bear
the weight
Grinnell places on it, but stands for the more
limited proposition that the alleged bias "must be
560
KENNEDY, J., concurring in judgment
based upon something other than rulings in the case." 255 U. S.,
at 31.
Berger, in turn, relies upon an earlier case
advancing the same narrow proposition,
Ex parte American Steel
Barrel Co., 230 U.
S. 35,44 (1913) (predecessor of § 144 "was never intended to
enable a discontented litigant to oust a judge because of adverse
rulings made, for such rulings are reviewable otherwise"). There is
a real difference, of course, between a rule providing that bias
must arise from an extrajudicial source and one providing that
judicial rulings alone cannot sustain a challenge for bias.
Grinnell, therefore, provides a less than satisfactory
rationale for reading the extrajudicial source doctrine into § 144
or the disqualification statutes at issue here. It should come as
little surprise, then, that the Court does not enlist
Grinnell to support its adoption of the doctrine.
The Court adverts to, but does not ratify,
ante, at 549,
an alternative rationale: the requirement in § 144 that a
litigant's recusal affidavit "be filed not less than 10 days before
the beginning of the term at which the proceeding is to be heard,"
unless "good cause [is] shown for failure to file it within such
time." If a litigant seeking disqualification must file an
affidavit 10 days before the beginning of the term, the argument
goes, the alleged bias cannot arise from events occurring or facts
adduced during the litigation. See
Berger, supra, at 34-35.
That rationale fails as well. The 10-day rule has been an
anachronism since 1963, when Congress abolished formal terms of
court for United States district courts. See 28 U. S. C. § 138. In
any event, the rule always had an exception for good cause. And
even if the 10-day requirement could justify reading the
extrajudicial source rule into § 144, it would not suffice as to
§455(a) or § 455(b)(1), which have no analogous requirement.
The Court is correct to reject yet another view, which has
gained currency in several Courts of Appeals, that the term
"personal" in §§ 144 and 455(b)(1) provides a textual home for the
extrajudicial source doctrine.
Ante, at 548-550.
561
Given the flaws with prior attempts to justify the doctrine, the
Court advances a new rationale: The doctrine arises from the
pejorative connotation of the term "bias or prejudice" in §§ 144
and 455(b)(1) and the converse of the term "impartiality" in §
455(a).
Ante, at 550, 552-553. This rationale, as the Court
acknowledges, does not amount to much. It is beyond dispute that
challenged opinions or predispositions arising from outside the
courtroom need not be disqualifying. See,
e. g., United
States v.
Conforte, 624 F.2d
869, 878-881 (CA9), cert. denied, 449 U. S. 1012 (1980).
Likewise, prejudiced opinions based upon matters disclosed at trial
may rise to the level where recusal is required. See,
e. g.,
United States v.
Holland, 655 F.2d
44 (CA5 1981);
Nicodemus v.
Chrysler Corp.,
596 F.2d
152, 155-157, and n. 10 (CA6 1979). From this, the Court is
correct to conclude that an allegation concerning some
extrajudicial matter is neither a necessary nor a sufficient
condition for disqualification under any of the recusal statutes.
Ante, at 554-555. The Court nonetheless proceeds, without
much explanation, to find "a significant (and often determinative)
'extrajudicial source'
factor" in those statutes.
Ante, at 555 (emphasis in original).
This last step warrants further attention. I recognize along
with the Court that, as an empirical matter, doubts about a judge's
impartiality seldom have merit when the challenged mindset arises
as a result of some judicial proceeding. The dichotomy between
extrajudicial and intrajudicial sources, then, has some slight
utility; it provides a convenient shorthand to explain how courts
have confronted the disqualification issue in circumstances that
recur with some frequency.
To take a common example, litigants (like petitioners here)
often seek disqualification based upon a judge's prior
participation, in a judicial capacity, in some related litigation.
Those allegations are meritless in most instances, and their prompt
rejection is important so the case can proceed. Judges, if faithful
to their oath, approach every aspect of
562
KENNEDY, J., concurring in judgment
each case with a neutral and objective disposition. They
understand their duty to render decisions upon a proper record and
to disregard earlier judicial contacts with a case or party.
Some may argue that a judge will feel the "motivation to
vindicate a prior conclusion" when confronted with a question for
the second or third time, for instance, upon trial after a remand.
Ratner, Disqualification of Judges for Prior Judicial Actions, 3
How. L. J. 228, 229-230 (1957). Still, we accept the notion that
the "conscientious judge will, as far as possible, make himself
aware of his biases of this character, and, by that very
self-knowledge, nullify their effect."
In re
J. P.
Linahan, Inc., 138 F.2d 650, 652 (CA2 1943). The acquired
skill and capacity to disregard extraneous matters is one of the
requisites of judicial office. As a matter of sound administration,
moreover, it may be necessary and prudent to permit judges to
preside over successive causes involving the same parties or
issues. See Rules Governing Section 2255 Proceedings for the United
States District Courts, Rule 4(a) ("The original motion shall be
presented promptly to the judge of the district court who presided
at the movant's trial and sentenced him, or, if the judge who
imposed sentence was not the trial judge, then it shall go to the
judge who was in charge of that part of the proceedings being
attacked by the movant"). The public character of the prior and
present proceedings tends to reinforce the resolve of the judge to
weigh with care the propriety of his or her decision to hear the
case.
Out of this reconciliation of principle and practice comes the
recognition that a judge's prior judicial experience and contacts
need not, and often do not, give rise to reasonable questions
concerning impartiality.
B
There is no justification, however, for a strict rule dismissing
allegations of intrajudicial partiality, or the appearance
563
thereof, in every case. A judge may find it difficult to put
aside views formed during some earlier proceeding. In that instance
we would expect the judge to heed the judicial oath and step down,
but that does not always occur. If through obduracy, honest
mistake, or simple inability to attain selfknowledge the judge
fails to acknowledge a disqualifying predisposition or
circumstance, an appellate court must order recusal no matter what
the source. As I noted above, the central inquiry under § 455(a) is
the appearance of partiality, not its place of origin.
I must part, then, from the Court's adoption of a standard that
places all but dispositive weight upon the source of the alleged
disqualification. The Court holds that opinions arising during the
course of judicial proceedings require disqualification under §
455(a) only if they "display a deep-seated favoritism or antagonism
that would make fair judgment impossible."
Ante, at 555.
That standard is not a fair interpretation of the statute, and is
quite insufficient to serve and protect the integrity of the
courts. In practical effect, the Court's standard will be difficult
to distinguish from a
per se extrajudicial source rule, the
very result the Court professes to reject.
The Court's "impossibility of fair judgment" test bears little
resemblance to the objective standard Congress adopted in § 455(a):
whether a judge's "impartiality might reasonably be questioned."
The statutory standard, which the Court preserves for allegations
of an extrajudicial nature, asks whether there is an appearance of
partiality. See
Liljeberg, 486 U. S., at 860 ("[t]he goal of
section 455(a) is to avoid even the appearance of partiality")
(internal quotation marks omitted);
United States v.
Chantal, 902 F.2d
1018, 1023 (CA1 1990). The Court's standard, in contrast, asks
whether fair judgment is impossible, and if this test demands some
direct inquiry to the judge's actual, rather than apparent, state
of mind, it defeats the underlying goal of § 455(a): to avoid the
appearance of partiality even when no partiality exists.
564
KENNEDY, J., concurring in judgment
And in all events, the "impossibility of fair judgment" standard
remains troubling due to its limited, almost preclusive character.
As I interpret it, a § 455(a) challenge would fail even if it were
shown that an unfair hearing were likely, for it could be argued
that a fair hearing would be possible nonetheless. The integrity of
the courts, as well as the interests of the parties and the public,
are ill served by this rule. There are bound to be circumstances
where a judge's demeanor or attitude would raise reasonable
questions concerning impartiality but would not devolve to the
point where one would think fair judgment impossible.
When the prevailing standard of conduct imposed by the law for
many of society's enterprises is reasonableness, it seems most
inappropriate to say that a judge is subject to disqualification
only if concerns about his or her predisposed state of mind, or
other improper connections to the case, make a fair hearing
impossible. That is too lenient a test when the integrity of the
judicial system is at stake. Disputes arousing deep passions often
come to the courtroom, and justice may appear imperfect to parties
and their supporters disappointed by the outcome. This we cannot
change. We can, however, enforce society's legitimate expectation
that judges maintain, in fact and appearance, the conviction and
discipline to resolve those disputes with detachment and
impartiality.
The standard that ought to be adopted for all allegations of an
apparent fixed predisposition, extrajudicial or otherwise, follows
from the statute itself: Disqualification is required if an
objective observer would entertain reasonable questions about the
judge's impartiality. If a judge's attitude or state of mind leads
a detached observer to conclude that a fair and impartial hearing
is unlikely, the judge must be disqualified. Indeed, in such
circumstances, I should think that any judge who understands the
judicial office and oath would be the first to insist that another
judge hear the case.
565
In matters of ethics, appearance and reality often converge as
one. See
Offutt v.
United States, 348 U. S. 11, 14 (1954)
("[J]ustice must satisfy the appearance of justice");
Ex parte
McCarthy, [1924] 1 K. B. 256, 259 (1923) ("[J]ustice should not
only be done, but should manifestly and undoubtedly be seen to be
done"). I do not see how the appearance of fairness and neutrality
can obtain if the bare possibility of a fair hearing is all that
the law requires. Cf.
Marshall v.
Jerrico, Inc.,
446 U. S. 238,
242 (1980) (noting the importance of "preserv[ing] both the
appearance and reality of fairness," which "'generat[es] the
feeling, so important to a popular government, that justice has
been done''') (quoting
Joint AntiFascist Refugee Comm. v.
McGrath, 341
U. S. 123, 172 (1951) (Frankfurter, J., concurring)).
Although the source of an alleged disqualification may be
relevant in determining whether there is a reasonable appearance of
impartiality, that determination can be explained in a
straightforward manner without resort to a nearly dispositive
extrajudicial source factor. I would apply the statute as written
to all charges of partiality, extrajudicial or otherwise, secure in
my view that district and appellate judges possess the wisdom and
good sense to distinguish substantial from insufficient allegations
and that our rules, as so interpreted, are sufficient to correct
the occasional departure.
II
The Court's effort to discern an "often dispositive"
extrajudicial source factor in § 455(a) leads it to an additional
error along the way. As noted above, the Court begins by explaining
that the pejorative connotation of the term "bias or prejudice"
demonstrates that the source of an alleged bias is significant
under §§ 144 and 455(b)(1). The Court goes on to state that "it is
unreasonable to interpret § 455(a) (unless the language
requires it) as implicitly eliminating a limitation
explicitly set forth in § 455(b)."
Ante, at 553 (emphasis in
original). That interpretation, the Court reasons, "would
566
KENNEDY, J., concurring in judgment
cause the statute, in a significant sense, to contradict
itself."
Ante, at 552.
We rejected that very understanding of the interplay between §§
455(a) and (b) in
Liljeberg v.
Health Services
Acquisition Corp., 486 U. S. 847 (1988).
Respondent in
Liljeberg sought to disqualify a district
judge under § 455(a) because the judge (in his capacity as trustee
of a university) had a financial interest in the litigation, albeit
an interest of which he was unaware. Petitioner opposed
disqualification, and asked us to interpret §455(a) in light of
§455(b)(4), which provides for disqualification only if the judge
"knows that he, individually or as a fiduciary, ... has a financial
interest in the subject matter in controversy or in a party to the
proceeding." According to petitioner, the explicit knowledge
requirement in §455(b)(4) indicated that Congress intended a
similar requirement to govern § 455(a). See
Liljeberg, 486
U. S., at 859, n. 8. Otherwise, petitioner contended, the knowledge
requirement in §455(b)(4) would be meaningless.
Ibid.
In holding for respondent, we emphasized that there were
"important differences" between subsections (a) and (b), and
concluded that the explicit knowledge requirement under § 455(b)(4)
does not apply to disqualification motions filed under §455(a).
Id., at 859-860, and n. 8.
Liljeberg teaches,
contrary to what the Court says today, that limitations inherent in
the various provisions of § 455(b) do not, by their own force,
govern § 455(a) as well. The structure of § 455 makes clear that
subsections (a) and (b), while addressing many of the same
underlying circumstances, are autonomous in operation. Section
455(b) commences with the charge that a judge "shall also
disqualify himself in the following circumstances"; Congress'
inclusion of the word "also" indicates that subsections (a) and (b)
have independent force. Section 455(e), which permits parties to
waive grounds for disqualification arising under § 455(a), but not
§ 455(b), provides further specific textual confirmation of the
difference.
567
The principal distinction between §§ 455(a) and (b) is apparent
from the face of the statute. Section 455(b) delineates specific
circumstances where recusal is mandated; these include instances of
actual bias as well as specific instances where actual bias is
assumed. See 28 U. S. C. § 455(b)(1) ("personal bias or
prejudice"); § 455(b)(2) (judge "served as [a] lawyer in the matter
in controversy" while in private practice); § 455(b)(3) (same while
judge served in government employment); § 455(b)(4) ("financial
interest" in the litigation); § 455(b)(5) (judge "within the third
degree of relationship" to a party, lawyer, or material witness).
Section 455(a), in contrast, addresses the appearance of
partiality, guaranteeing not only that a partisan judge will not
sit, but also that no reasonable person will have that suspicion.
See
Liljeberg, supra, at 860.
Because the appearance of partiality may arise when in fact
there is none, see,
e. g., Hall v.
Small Business
Admin., 695 F.2d
175, 179 (CA5 1983);
United States v.
Ritter, 540
F. 2d 459, 464 (CAlO), cert. denied, 429 U. S. 951 (1976), the
reach of § 455(a) is broader than that of § 455(b). One of the
distinct concerns addressed by § 455(a) is that the appearance of
impartiality be assured whether or not the alleged disqualifying
circumstance is also addressed under § 455(b). In this respect, the
statutory scheme ought to be understood as extending § 455(a)
beyond the scope of § 455(b), and not confining § 455(a) in large
part, as the Court would have it. See
ante, at 553-554, n.
2. The broader reach of § 455(a) is confirmed by the rule
permitting its more comprehensive provisions, but not the absolute
rules of § 455(b), to be waived. See 28 U. S. C. §455(e). And in
all events, I suspect that any attempt to demarcate an "area of
overlap"
(ante, at 553) between §§ 455(a) and (b) will prove
elusive in many instances.
Given the design of the statute, then, it is wrong to impose the
explicit limitations of § 455(b) upon the more extensive
protections afforded by § 455(a). See
Liljeberg, supra,
568
KENNEDY, J., concurring in judgment
at 859-861, and n. 8. The Court's construction of the statute
undercuts the protection Congress put in place when enacting §
455(a) as an independent guarantee of judicial impartiality.
III
The Court describes in all necessary detail the unimpressive
allegations of partiality, and the appearance thereof, in this
case. The contested rulings and comments by the trial judge were
designed to ensure the orderly conduct of petitioners' trial.
Nothing in those rulings or comments raises any inference of bias
or partiality. I concur in the judgment.
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