Cite as: 510 U. S. 540 (1994)
Kennedy, J., concurring in judgment
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 (CA10), 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,
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