[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

All of these categories except personal bias are objective and relatively easy to
document. The personal bias standard differs because it usually requires proof of actual
subjective inability to weigh the matter impartially. 44 Cheney and Williams illustrate how
the personal bias standard has caused confusion with the objective umbrella “impartiality
might reasonably be questioned” standard. First, both require interpretation (usually by the
judge whose disqualification is sought). Second, that judge likely will suffer from a
cognitive bias — that he or she is unbiased or will not be influenced. 45 Together, these two
factors invite “interpretive manipulations,” such as the holding that actual subjective bias
was necessary, even though recusal is mandatory once the judge’s “impartiality might
reasonably be questioned.” 46
Once a judge is subject to disqualification, two events can override such a result. First,
the rule of necessity — that no judge has the requisite impartiality to decide the matter —
can prevail over an otherwise substantive basis for disqualification. 47 Second, a
disqualification not based on personal bias can be waived by the parties as long as they
make such a decision to waive outside the presence of the judge. 48
Extrajudicial Conduct
A judge’s impartiality obligation reaches into his or her extrajudicial life. Judges must avoid
participating in activities that will often lead to disqualification, or undermine their
independence, integrity, or impartiality. 49 For example, judges cannot affiliate with
discriminatory organizations, voluntarily testify as character witnesses, or appear voluntarily
before a legislative body or accept governmental appointments, except in connection with
matters concerning the legal system or administration of justice. Judges also cannot accept
fiduciary appointments, serve as arbitrators or mediators, practice law, serve as an officer or
director of any for-profit business entity, or engage in any other financial activities that will
interfere with proper performance of judicial duties. Service on nonprofit boards is allowed,
as long as the organization’s activities do not frequently come before the judge or the court
of which the judge is a member, or otherwise undermine the judge’s impartiality. 50 To
maintain judicial independence, a number of rules regulate extrajudicial compensation, 51
basically limiting it to reasonable honoraria, reimbursement of expenses, or the acceptance
of “ordinary social hospitality.” 52 Public reporting of extrajudicial compensation also is
required.
Cheney v. United States District Court for the
District of Columbia
541 U.S. 913 (2004)
Memorandum of Justice SCALIA.
I have before me a motion to recuse in these cases consolidated below. . . .
For five years or so, I have been going to Louisiana during the Court’s long December-
494