concurring.
I join the majority’s opinion and add a few thoughts on the question whether an “appearance of impropriety” by the presiding judge means that the conviction violates the due process clause of the fourteenth amendment to the Constitution.
“Appearance” problems lurk everywhere, for they are in the eye of the beholder. A suspicious observer might believe that Judge Garippo “went easy” on Del Vecchio in his role as prosecutor, creating the appearance that as judge he cracked down to make up for his mistake. This brand of argument cannot be cabined. Suppose Prosecutor Gar-ippo had insisted on an adult sentence for Del Vecchio; would our skeptic not then say that Judge Garippo, knowing that a hard line had not done its work, would be more inclined to favor death, as the only sure means of incapacitation? The same kind of argument could be made if Judge Garippo’s encounter with Del Vecchio had been as a judge in an earlier case. Whether he gave a light, normal, or stiff sentence the first time, it could be said to “appear” that this strategy failed, leading to severity on the second trial. But see Liteky v. United States, — U.S. -, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). By a similar approach hearing a case involving a litigant who used to be the judge’s client, or a case presented by a lawyer who used to be his partner, would convey a bad appearance. A disqualification rule based on connections to lawyers and litigants would relieve a majority of this court of all cases involving the national government, because six of us formerly worked in the Department of Justice.
I appreciate that many persons would feel more comfortable if judges did not hear eases in these categories. See United States v. Murphy, 768 F.2d 1518, 1536-41 (7th Cir.1985). American law has been marked by progressively more restrictive rules of disqualification, responding to changing views of the judicial role. See G. Edward White, Patterns of American Legal Thought 99-143 (1978). Developments in statutory and common law do not feed back, through the due process clauses, to become part of the Constitution. For more than two hundred years American law has treated ethical norms as within the control of living legislators and judges, who alter the rules to suit contemporary understandings of wise judicial conduct. Disqualification statutes and codes of judicial ethics are the work of the twentieth century. The statute disqualifying federal judges who are biased, 28 U.S.C. § 144, was enacted in 1911. 36 Stat. 1090. In 1942 the Conference of Senior Circuit Judges (the precursor to the Judicial Conference of the United States) adopted a resolution discouraging judges from sitting in cases in which near relatives were lawyers. See 28 A.B.A.J. 817, 820 (1942). Until then the practice had been common. A formal Code of Conduct for United States Judges was first adopted in 1973. Not until 1974 was there any requirement that federal judges refrain from sitting when their impartiality might reasonably be questioned. 28 U.S.C. § 455(a). The Constitution does not contain a ratchet, ensuring that every new rule protecting the appearance of propriety becomes insulated from change by political actors and that every *1390improvement in federal statutory law applies to state judiciaries.
The due process clauses come from English jurisprudence, which had a simple rule: “a judge was disqualified for direct pecuniary interest and for nothing else.” John P. Frank, Disqualification of Judges, 56 Yale L.J. 605, 609 (1947). British law rejected the proposition that judges could be disqualified for bias of any other kind. Id. at 609-12 (recounting English cases and commentators); see also William Blackstone, 3 Commentaries on the Laws of England *361 (1768). The United States took over that tradition, and through the nineteenth century judges saw no difficulty in sitting when their relatives were parties (or lawyers), or in hearing appeals from their own decisions. See G. Edward White, III History of the Supreme Court of the United States: The Marshall Court and Cultural Change, 1815-85 181-200 (1988); David P. Currie, The Constitution in the Supreme Court: The First Hundred Years 76 (1985); Frank, 56 Yale L.J. at 615-18.
Our legal culture’s most revered judicial decision, Marbury v. Madison, 1 Cranch (5 U.S.) 137, 2 L.Ed. 60 (1803), was rendered by John Marshall — who just happened to be the cause of the litigation. Secretary of State Marshall left Marbury’s commission behind in his desk at the end of the Adams Administration when he departed to become Chief Justice and write the opinion disposing of the ensuing litigation. Did the other Justices, all active in the writing or approval of the Constitution, overlook a glaring violation of the due process clause of the fifth amendment? Chief Justice Chase, present at the creation of the fourteenth amendment, sat in judgment on the constitutionality of the greenback legislation he had devised as Secretary of the Treasury and for which he had, risked his political neck. See Hepburn v. Griswold, 8 Wall. (75 U.S.) 603, 19 L.Ed. 513 (1870); The Legal Tender Cases, 12 Wall. (79 U.S.) 457, 20 L.Ed. 287 (1871); Charles Fairman, VI History of the Supreme Court of the United States: Reconstruction and Reunion 1864,-88 Part 1677-775 (1971). Did ah of the members of that Court miss the constitutional implications of such a step? The First Congress enacted a Judiciary Act that led Justices to hear appeals from their own decisions on circuit. Not until 1891, with the creation of the courts of appeals, was the procedure for an “appeal” from a judge to himself abolished.† Did legislators and judges for 114 years fail to appreciate the “appearance” problem, and thus the unconstitutionality of the entire federal judicial system? Vestiges of the old system are evident in today’s decision. Three members of the en banc court were on the panel and so are visiting this case for a second time. All three believe that their first decision was correct; does this create a problem under the due process clause?
Whatever one may say about the prudence of Chief Justice Marshall’s decision to sit in Marburg, or Chief Justice Chase’s to sit in the greenback cases, I do not think that either violated the Constitution. See Laird v. Tatum, 409 U.S. 824, 93 S.Ct. 7, 34 L.Ed.2d 50 (1972) (Rehnquist, J., in chambers) (collecting other examples); United States v. Bonds, 18 F.3d 1327 (6th Cir.1994) (Boggs, J., in chambers); Schurz Communications, Inc. v. FCC, 982 F.2d 1057 (7th Cir.1992) (Posner, J., in chambers). These incidents also show the dangers of inferring prejudgment from prior activities: Chief Justice Chase confounded President Lincoln’s expectations by voting to hold the legislation unconstitutional, and Chief'Justice Marshall *1391withheld the commission from fellow-Federalist Marbury.
My conclusion that disqualification for “appearance of impropriety” is a subject for statutes, codes of ethics, and common law, rather than a constitutional command, would be of but academic interest if the Supreme Court had authoritatively decided to the contrary. None of that Court’s constitutional decisions, however, establishes that an “appearance” problem — as opposed to actual bias — invalidates a judgment. To the contrary, the theme of the cases is exactly the common law rule: a judge with a financial interest in the outcome of the case may not sit. E.g., Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986); Ward v. Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927). At the same time, the Court tolerates evidence of bias that creates undeniable “appearance” problems:
Appellant contends Justice Embry’s general hostility towards insurance companies that were dilatory in paying claims, as expressed in his deposition, requires a conclusion that the Due Process Clause was violated by his participation in the disposition of this case. The Court has recognized that not “[a]ll quéstions of-judicial qualification ... involve constitutional validity. Thus matters of kinship, personal bias, state policy, remoteness of interest, would seem generally to be matters merely of legislative discretion.” Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 441, 71 L.Ed. 749 (1927); see also FTC v. Cement Institute, 333 U.S. 683, 702, 68 S.Ct. 793, 804, 92 L.Ed. 1010 (1948) (“[MJost matters relating to judicial disqualification [do] not rise to a constitutional level”). Moreover, the traditional common-law rule was that disqualification for bias or prejudice was not permitted. See, e.g., Clyma v. Kennedy, 64 Conn. 310, 29 A. 539 (1894). See generally Frank, Disqualification of Judges, 56 Yale L.J. 605 (1947). As Blackstone put it, “the law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea.” 3 W. Blackstone, Commentaries *361. The more recent trend has been towards the adoption of statutes that permit disqualification for bias or prejudice. See Berger v. United States, 255 U.S. 22, 31, 41 S.Ct. 230, 232, 65 L.Ed. 481 (1921) (enforcing statute disqualifying federal judges in certain circumstances for personal bias or prejudice). See also ABA Code of Judicial Conduct, Canon 3C(l)(a) (1980) (“A judge should disqualify himself ... where he has a personal bias or prejudice concerning a party”). But that alone would not be sufficient basis for imposing a constitutional requirement under the Due Process Clause. We held in Patterson v. New York, 432 U.S. 197, 201-202, 97 S.Ct. 2319, 2322, 53 L.Ed.2d 281 (1977) (citations omitted), that
it is normally within the power of the State to regulate procedures under which its laws are carried out ... and its decision in this regard is not subject to proscription under the Due Process Clause unless it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.
We need not decide whether allegations of bias or prejudice by a judge of the type we have here would ever be sufficient under the Due Process Clause to force recusal. Certainly only in the most extreme of cases would disqualification on this basis be constitutionally required, and appellant’s arguments here fall well below that level. Appellant suggests that Justice Embry’s general frustration with insurance companies reveals a disqualifying bias, but it is likely that many claimants have developed hostile feelings from the frustration in awaiting settlement of insurance claims. Insurers, on their side, have no easy task, especially when trying to evaluate whether certain medical diagnostic tests or prolonged hospitalization were indicated. In turn, the physicians and surgeons, whether impelled by valid medical judgment or by apprehension as to future malpractice claims — or some combination of the two — similarly face difficult problems. Appellant’s allegations of bias and *1392prejudice on this general basis, however, are insufficient to establish any constitutional violation.
Aetna, 475 U.S. at 820-21, 106 S.Ct. at 1585 (brackets in original). See also Liteky, — U.S. at -, 114 S.Ct. at 1155-57.
Cases sometimes treated as examples of “appearance” problems actually have different emphases. For example, Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971), held that a judge should not preside in a case in which he was the victim of a crime. The contemptuous remarks had been directed to the judge, and although historical practice would have allowed the judge to mete out summary punishment, it did not allow the judge to preside at a later trial. In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955), dealt with a combination of prosecutorial and judicial functions that left the judge not only confused about his role but also in possession of evidence he should not have known. See Withrow v. Larkin, 421 U.S. 35, 53, 95 S.Ct. 1456, 1467, 43 L.Ed.2d 712 (1975). Thus Murchison holds that the due process clause requires a trial to be limited to evidence heard in court, not that the Constitution precludes adjudication whenever the judge appears to have prejudged matters. An “appearance” of impropriety alone has never led the Supreme Court to find that a party did not receive due process of law.
Our notions of proper judicial conduct are just that — ideas about propriety rather than about constitutional minima that everyone must accept. That is why the Court distinguished in Aetna between a financial stake in the outcome of the case and a dislike of insurance companies. Judges and legislators alike may be held accountable when their ideas about proprieties lead the public to believe that the quality of justice has deteriorated — even if the perceptions are incorrect. Dealing with this problem is an important task for the living; we ought not pretend that it was settled two hundred years ago, and that everything is out of contemporary hands. Federal judges are free to, and should, expect more than the constitutional minimum from themselves, but we cannot insist that the states do likewise.
CUMMINGS, Circuit Judge, joined by CUDAHY, RIPPLE, and ROVNER, Circuit Judges, dissenting.
Judge Garippo ought not to have presided over the Canzoneri trial. His intimate involvement in the Christiansen proceeding; the unfortunate connection between the disposition of that case and Del Vecchio’s subsequent murderous behavior; the necessity of ruling, as judge, regarding decisions that he himself had previously made as prosecutor— all of these factors suggest, in the words of the majority, ante at page 1371, such an “actual incentive ... to be biased” that recu-sal is required. The Due Process Clause of the Fourteenth Amendment mandates this result even if in this case the judge was not in fact biased.
The majority concludes otherwise. Our disagreement is due in part to our differing interpretations of recent Supreme Court jurisprudence. Of much greater import, however, is our disagreement over what actually occurred in the Christiansen and Canzoneri proceedings. The majority’s version is as follows: “[Louis Garippo] was only tangentially involved in Del Vecchio’s 1965 prosecution. His decisions regarding the prosecution had little if anything to do with Del Vecchio being a free man in 1977, when he killed Tony Canzoneri.” Maj.Op. at page 1370, ante. Moreover, because the sentence that Del Vecchio received upon his transfer from a youth facility to an adult penitentiary was the very same minimum sentence that would have applied had he been initially convicted and tried after his seventeenth birthday, the majority claims that the decision to expedite Del Vecchio’s indictment merely “allowed [him] to spend the first four years of his sentence in a youth correctional facility, rather than in an adult prison.” Id. at page 1378, ante.
The majority then concludes that Judge Garippo was unlikely to have had any particularly strong feelings — the sort of feelings that would arguably make him unfit to preside over the Canzoneri trial — about the fact that Del Vecchio was freed from prison after the Christiansen killing just in time to commit a second, gruesome murder. Id. In*1393deed, the majority goes so far as to suggest, by lengthy analogy, that Judge Garippo might not even have remembered his role in the Christiansen case by the time Del Vec-chio appeared before him in the Canzoneri trial. Id. at page 1371, ante. And if a judge is not even aware of circumstances which, if known to him, might bias him against a party, how could it violate due process principles for him to preside at trial? So reasons the majority.1
If this version of events were even plausible, I would not dissent today. However, the majority has obfuscated both Garippo’s role in the Christiansen prosecution and Del Vec-chio’s theory of its biasing influence on the Canzoneri proceedings. First, Garippo was intimately involved in the prosecution of the Christiansen case. Second, the decisions that he made in that case directly influenced Del Vecchio’s being free to kill again in 1977. Third, Garippo was aware when he made those decisions that they could well result in Del Vecehio’s imminent release. Finally, the record clearly establishes that Garippo remembered his extensive role in the Chris-tiansen ease when Del Vecchio first appeared before him in the Canzoneri trial.
Thus the appearance of bias that results from allowing Garippo to sit as judge over Del Vecchio’s subsequent trial — and to evaluate the propriety of his own earlier prosecu-torial decisions — is such that Del Vecchio was clearly denied due process of law. Cf. Aetna Life Insurance Company v. Lavoie, 475 U.S. 813, 825, 106 S.Ct. 1580, 1587, 89 L.Ed.2d 823 (“The Due Process Clause may sometimes bar trial by judges who have no actual bias.... But to perform its high function in the best way, justice must satisfy the appearance of justice.” (Internal quotation marks and citations omitted.)).
First, Garippo was not, as the majority claims, merely “tangentially” involved in the Del Vecchio prosecution. The record is clear that every major decision involving Del Vec-chio’s prosecution in the Christiansen case was either made or approved by Garippo. The entire Christiansen proceedings took less than a month — Del Vecchio was initially interrogated on February 2, 1965, when he confessed to the Christiansen killing, and he pleaded guilty and was sentenced on February 24 of that same year. People v. Del Vecchio, 129 Ill.2d 265, 273, 135 Ill.Dec. 816, 544 N.E.2d 312 (1989), certiorari denied, 494 U.S. 1062, 110 S.Ct. 1540, 108 L.Ed.2d 779. During that time Garippo “probably” reviewed memoranda concerning Del Vecehio’s initial confession. Garippo Dep. at 6. He assigned the case to his former trial partner to prosecute. Id. He was involved in the decision to prosecute Del Vecchio as an adult. Id. at 10. He made the decision to expedite Del Vecchio’s indictment so as to allow him to plead guilty prior to his seventeenth birthday. Id. at 17-18. He even attended, as a spectator, Del Vecchio’s guilty plea and sentencing hearing. Id. at 19. It is hard to imagine any prosecutorial decisions during that month with which Garippo was not involved.
Indeed, as Garippo himself noted, there were only two important decisions to be made in the case: whether to prosecute Del Vecchio as an adult, and whether to expedite the indictment. Id. at 17. Garippo made both. Clearly his involvement in the Chris-tiansen case was much more than tangential. Garippo was the key decision-maker throughout the proceedings.
Second, it is clear that the decision to expedite Del Vecchio’s indictment — the effect of which was to postpone his receiving an adult sentence until after his twenty-first birthday — directly influenced the length of that sentence and therefore contributed to Del Vecchio’s being free, in 1977, to kill Tony Canzoneri. It is mere sophistry to suggest, as does the majority at pages 1377-78, ante, that “It just so happened that the judge in 1971 decided to be lenient. In retrospect, there is no telling whether a judge asked to sentence Del Vecchio as an adult in 1965 would have been lenient.... Granted, Del *1394Vecchio ultimately received a light sentence [for the Christiansen murder], but this light treatment was not because of prosecutor Garippo.”
This reasoning strains credulity. In 1965 Del Vecchio was widely perceived as a drug-crazed killer. The suggestion that if Del Vecchio had been sentenced at that time he would have received the statutory minimum is absurd. In 1965 the newspapers abounded with stories about the “teen addicts” who, “high on goofballs,” “shot [their] victim 19 times” in order to recover eleven dollars. Indeed, in February and March 1965 there were at least 39 stories in four major papers about the crime itself, the gentle character of the victim, the brutal natures of the perpetrators, and the heroism of the detectives who solved the crime, as well as background stories about the drug trade. R. 13-4. A judge in 1965 would be presented with information that overwhelmingly militated in favor of a substantial sentence; he would be presented with almost no information in mitigation. '
But the George Del Vecchio who was sentenced in 1971 to the statutory minimum appeared as a very different George Del Vecchio from the one who would have been sentenced in 1965 if Garippo had initially chosen to delay the indictment. By 1971 Del Vecchio had been afforded six years in which to refurbish his image, four in a youth facility and two in an adult penitentiary. He was so successful that the staff at the Illinois Youth Commission unanimously objected to his transfer to an adult facility, instead recommending immediate parole. PX. 4 at 12, 24-25. Even the prosecutor at Del Vecchio’s 1971 sentencing commented that he had done everything possible to rehabilitate himself. PX. 4 at 32. Del Veechio’s relatively short sentence in 1971 was clearly attributable to his apparent rehabilitation since 1965.2 That he had the opportunity to rehabilitate himself prior to sentencing was a direct result of the decision to expedite his indictment and thereby delay his adult sentencing.
Third, the majority incorrectly portrays the nature of the decision that Garippo made when he expedited the indictment so that Del Vecchio could plead guilty prior to his seventeenth birthday. The majority suggests at page 1378, ante, that “the only break Del Vecchio received because of the quick indictment was that he was allowed to spend the first four years of his incarceration in a youth correctional facility, rather than in an adult prison.” Of course, the other “break” Del Vecchio received was the opportunity to rehabilitate himself prior to sentencing. But putting this to one side, it is clear that the decision made by Garippo was more momentous than the majority chooses to recognize.
Garippo’s decision to expedite the indictment created the risk that Del Vecchio would be released without spending any time at all in an adult facility; indeed, it created a risk that he would be released immediately. In 1965 Illinois law provided that a male convicted and sentenced as an adult before his seventeenth birthday was committed to the Illinois Youth Commission (IYC) with no mandatory minimum term — the IYC could release him immediately or at any time prior to his twenty-first birthday. When he turned twenty-one, the IYC could release him or transfer him to an adult penitentiary, Ill.Rev.Stat. ch. 23, § 2523 (1963), apparently with or without a new sentencing. Garippo Dep. at 12-13. By contrast, had Del Vecchio been convicted and sentenced just after his seventeenth birthday he would have been sent to an adult penitentiary with a minimum sentence of fourteen years and a maximum sentence of life in prison. Ill.Rev.Stat. ch. 38, § 9-1 (1963).
The majority therefore overlooks the import of allowing Del Vecchio to be sentenced just prior to, rather than just after, his seventeenth birthday. When Garippo made the crucial decision to allow an expedited indictment he placed society at risk that Del Vec-chio would be released before serving anything like the statutory minimum term. In the face of what the majority itself characterizes, page 1367 ante, as “enormous publicity” *1395for a “random aet[ ] of violence to gain drug money” — at that time an almost-unprecedented event — Garippo chose, for whatever reason, to make Del Vecchio eligible for release at any time prior to his twenty-first birthday.3 Did he feel, contrary to overwhelming public opinion, that Del Vecchio was rehabilitable? If so, then subsequent events proved him tragically wrong. Whatever his reasons for granting Del Vecehio’s request for an expedited indictment, Garippo was aware of the substantial risks attendant upon allowing Del Vecchio to be sentenced before he turned seventeen.
Garippo’s curious decision to expedite the indictment must form the backdrop for his later discovery that Del Vecchio had been released from prison and had murdered a small child by partially severing his head. Against this backdrop it is not unreasonable to conclude that Garippo could have had an immediate, visceral reaction to learning that he was to preside at the Canzoneri trial.
It is absurd to suggest, as does the majority, that Garippo might not even have remembered his role in the Christiansen case by the time Del Vecchio appeared before him in the Canzoneri trial. The very name “Del Vec-chio” must have recalled to Judge Garippo the headlines that had blared “Teen Addicts’ Slay Story: ‘Laughed as Victim Died’ — ‘He Wouldn’t Stop Screaming.’” R. 13-4. Indeed, Del Veeehio’s name clearly triggered some response, since Judge Garippo went out of his way to obtain and review the Chris-tiansen case file prior to the Canzoneri trial. In any case, whatever prompted the recollection, Garippo explicitly acknowledged in his deposition testimony that he was aware, pri- or to the Canzoneri trial, of his own role in the Christiansen prosecution. Garippo Dep. at 19-20.
The majority correctly observes that “[w]hat may appear bad to an observer, espe-eially in hindsight, may not have influenced— or, more importantly, may not have had any real possibility to influence — the judge in his decision-making process.” Maj.Op. at page 1371, ante. And as the majority discusses at some length, this would be the case if, by chance, the judge were totally ignorant of those circumstances that, if known to him, would cause him to be biased. These observations, however, have absolutely no bearing on the case at bar. Judge Garippo was completely aware of the circumstances that Del Vecchio now argues placed him under a conflict of interest. The only question is whether these circumstances provided — in the words of the majority, page 1371 ante— an “actual incentive ... for [Garippo] to be biased.”
The answer to this question is obvious. Garippo made every key decision in the Christiansen prosecution, including a decision that placed society at risk of Del Vecchio’s imminent release. This decision directly resulted in Del Vecchio’s eventual light sentence and early release. When Del Vecchio killed again, in a horrifying and senseless fashion, any judge in Garippo’s situation would have felt a strong personal connection to the case. Indeed, a judge in Garippo’s position might well have felt that Del Vecchio had “dirtied [that judge’s] sweatshirt” — a phrase used by Garippo himself to describe how “very offended” he would feel if someone he had treated leniently proved not to have deserved it. • Garippo Dep. at 32.
At the time of the Canzoneri trial a defendant such as Del Vecchio “[could] with reason say that he feared he could not get a fair trial” before Judge Garippo. Tumey v. Ohio, 273 U.S. 510, 533, 47 S.Ct. 437, 444, 71 L.Ed. 749. This is sufficient to require Judge Gar-ippo’s recusal, without any further inquiry into Garippo’s actual state of mind. Moreover, Garippo’s behavior during and after *1396that trial was such as to reinforce in the mind of a reasonable defendant the perception that a fair trial before Judge Garippo could not be had. First, because the earlier Christiansen proceedings were inextricably linked to many issues that arose in the Can-zoneri trial, Judge Garippo was forced to revisit many of his earlier prosecutorial decisions. He should never have been placed in such a position. But putting to one side any substantive issues raised in the trial itself, Judge Garippo’s actions in regard to the very issue of his own possible disqualification serve to underscore the impropriety of his presiding over the Canzoneri trial.
Had the defense been aware of Garippo’s extensive involvement in the Christiansen case early in the Canzoneri proceedings, it could have filed a motion for substitution of judges, either for cause or as of right. Ill. Rev.Stat. ch. 38, § 114-5 (1963) (amended subsequent to 1978, see 725 ILCS 5/114-5 (1992)). But Garippo did not reveal even the fact of his earlier involvement, let alone its extent, to the defense. Indeed, the defense did not discover the fact of Garippo’s involvement in the Christiansen prosecution until 1986, when all direct appeals had been exhausted. Judge Garippo’s silence on this issue prevented the defense from exercising its right to replace him.
Even when the issue of Judge Garippo’s conflict of interest was raised in state court collateral proceedings, the extent of Garip-po’s involvement in the Christiansen case was not revealed. Had the defense been able to bring Garippo’s true role in the Chris-tiansen prosecution before the Illinois Supreme Court, it is likely this issue would not be before us now. Upon Del Vecchio’s collateral attack, that court explicitly held that had Garippo “acted as counsel” to the state in the Christiansen matter, then he would have been disqualified to preside over the Canzon-eri trial. People v. Del Vecchio, 129 Ill.2d at 277, 135 Ill.Dec. 816, 544 N.E.2d 312. It concluded, however, that because Garippo’s role in the Christiansen prosecution was “limited” and thus that he had not “acted as counsel” to the state, it was not improper for him to preside over the Canzoneri trial. Id. at 277-278, 135 Ill.Dec. 816, 544 N.E.2d 312.
The court reached the conclusion that Gar-ippo had not acted as counsel to the state in the Christiansen case on the basis of an affidavit submitted by Garippo stating that he had performed only two tasks in regard to that case — assigning it to a prosecuting attorney and agreeing to expedite the indictment. Id. at 277, 135 Ill.Dec. 816, 544 N.E.2d 312. He twice characterized his involvement as “limited.” R. 13-2 at 360-361. In fact, when Garippo’s deposition was obtained — after the district court in this habeas proceeding ordered the discovery that had been denied Del Vecchio by the state — it became clear that Garippo’s involvement in the Christiansen case was not limited to two tasks and that his role in the prosecution was not minor. Had Garippo been more forthcoming during the state collateral proceedings, the Illinois Supreme Court might well have reached a different conclusion regarding whether he had “acted as counsel” to the state.
The picture that emerges from this chronicle of events is of a judge who actively wanted to preside over the Canzoneri trial, and who, having done so, resisted efforts to scrutinize the propriety of that decision. I wish to stress that the proper conclusion to draw from this is not that Garippo intended to treat Del Vecchio unfairly in his courtroom, but merely that Garippo had an unusually strong interest in remaining on the case. While Judge Garippo’s desire to preside over the Canzoneri trial is quite natural, given his previous experience with the defendant, the fact that Garippo felt so strongly about this trial demonstrates the unwisdom of his presiding over it. “Justice must satisfy the appearance of justice.” Aetna, 475 U.S. at 825, 106 S.Ct. at 1587, quoting with approval In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942. As the Supreme Court recently explained, determining whether a judge’s participation in a case violated the litigants’ due process rights does not require determining whether the judge was in fact influenced against a party. Aetna, 475 U.S. at 825, 106 S.Ct. at 1587. Rather, *1397sometimes the appearance of bias is so strong that a judge must be disqualified without any showing that he was in fact biased.4
The majority chides me for taking too seriously, in its view, the ‘“appearance of justice’ language from Murchison and Aet-na.” Maj.Op. at page 1371, ante; see also Judge Easterbrook’s concurrence generally. The majority and the concurrence prefer to overlook the Supreme Court’s continued approval of this language,5 and to re-analyze the facts of each case in order to discern what they take to be the actual rule of decision. But we are not authorized to limit an entire line of Supreme Court cases strictly to their facts,6 disregarding what that Court has explicitly identified as the organizing principle.
*1398Moreover, any distinction to be made between the test proposed by the majority and the “appearance of justice” language that it abhors is primarily a semantic one. For the phrase “justice must satisfy the appearance of justice,” the majority prefers to substitute “judges sometimes must recuse themselves when they face possible temptations to be biased.” Maj.Op. at page 1372, ante. The majority then cautions that “even if Judge Garippo faced some ‘possible temptation’ to be biased ..., not every ‘possible temptation’ to be biased presents a sufficient possibility of bias to require disqualification.” Id. It explains that a “possible temptation to be biased” requires recusal only when experience teaches that “under a realistic appraisal of psychological tendencies and human weaknesses” the temptation poses too great a risk of actual bias. Id. at 1375, quoting Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712. But clearly the circumstances of the Canzoneri trial presented such a risk of actual bias that Judge Garippo (under a realistic appraisal of psychological tendencies and human weaknesses) ought not to have presided over it.7
A rule that requires recusal when the appearance of bias is as strong as it is in this case, without requiring an independent showing of actual bias, serves many ends. Not the least of these is to avoid the sort of after-the-fact dissection of a judge’s motivations and behavior that two state courts, the district court, a divided appellate panel, and now this divided en banc Court, have regrettably been forced to practice in this case. Louis Garippo was held in high esteem as a state prosecutor and as a trial judge. (He has been in private practice since'1980. Gar-ippo Dep. at 31.) His reputation is not unknown to many of us here on the Seventh Circuit. While I believe that Garippo’s natural desire to preside over the second Del Vecchio trial obscured his ability to perceive what a grave conflict such a course of action entailed, I do not for a moment believe, nor do I wish to suggest, that Judge Garippo in any way intended to treat Del Vecchio unfairly. Indeed, I firmly believe that Judge Garippo thought he could put his personal feelings about the defendant aside and proceed in an impartial manner. Whether in fact he was correct or whether he was unfortunately mistaken does not matter. We must require strict adherence to the salutary rule that requires recusal whenever circumstances offer “a possible temptation to the average man as a judge ... not to hold the balance nice, clear and true between the state and the accused.” Tumey, 273 U.S. at 532, 47 S.Ct. at 444, quoted with approval by Aetna, 475 U.S. at 825, 106 S.Ct. at 1587.
Such a rule protects the accused from the danger of unfair judging. It maintains for the benefit of society the appearance of justice so necessary to the continued esteem of the judicial system. Moreover, it protects judges such as Louis Garippo — fine individuals who “have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties,” Aetna, 475 U.S. at 825, 106 S.Ct. at 625, quoting with approval Murchison, 349 U.S. at 136, 75 S.Ct. at 625; see also Taylor v. Hayes, 418 U.S. 488, 501, 94 S.Ct. 2697, 1587, 41 L.Ed.2d 897—from unseemly excursions into their psyches. The majority of this Court has held that Judge Garippo did not act improperly when he neither recused himself from the Del Vecchio trial nor revealed to the defense his role in the Christiansen case. But nothing the majority says can remove the cloud of doubt that now and forever hangs over the Del Vecchio trial that *1399the judge was irremediably biased. The tragedy is that Del Vecchio will go to his death as a result of this trial. The irony is that the appearance of such grave injustice could so easily have been avoided.
I respectfully dissent.
The Justices did not have to sit in review of decisions in which they had participated on circuit, but they did. The situation of district judges was more complex. The Judiciary Act of 1789 provided that these judges, when sitting on the circuit courts, could not hear appeals from their own decisions but could publish opinions explaining their original decisions. 1 Stat. 73, 74 (1789). When in 1793 Congress reduced from two to one the number of Justices needed to constitute a circuit court, this sometimes obliged the district judge to participate in the review of his own decision. The practice became common after 1875, when the addition of federal-question jurisdiction coupled with the shortage of circuit judges obliged circuit courts to convene with only the district judges in attendance. See Walter B. Hill, The Federal Judicial System, 12 A.B.A. Rep. 289 (1889). The practice did not end until the Evarts Act of 1891 created the institution that in 1911 was titled the United States Court of Appeals.
. In introducing this reasoning, the majority invites the reader to "Consider the following hypothetical” — a judge who is unaware of circumstances that would, if known to him, clearly require his recusal. Maj.Op. at page 1371, ante. Despite the later disclaimer that this hypothetical is not meant to call Judge Garippo to mind, id. at page 1371 n. 1, it is difficult to discern any other reason for employing such a suggestive fact-pattern.
. The majority itself recognizes this fact on page 1368, ante, when it notes that "During his stay at the youth facility, Del Vecchio had achieved a sterling record and [Judge Richard Fitzgerald] apparently took that into consideration."
. The decision to expedite the indictment, allowing Del Vecchio to plead guilty prior to his seventeenth birthday and therefore be sentenced to an indefinite term in a youth facility, is indeed puzzling. Del Vecchio had confessed to having committed a widely publicized crime of horrifying brutality. He offered to plead guilly to that crime if he could do so prior to his turning seventeen, thereby giving him the opportunity for release at any time prior to his twenty-first birthday. It is difficult to see the advantage to the state in accepting Del Vecchio's guilty plea in exchange for expediting the indictment. Delaying the indictment would ensure that Del Vec-chio received a definite sentence with no possibility of immediate release, while the detailed confession virtually guaranteed conviction.
. Because the circumstances under which Judge Garippo presided over the Canzoneri trial mandate issuance of a writ of habeas corpus, this dissent does not discuss many of Del Vecchio’s other claims of constitutional error in the state proceedings. However, I am by no means as sanguine as the majority that Simmons v. South Carolina, - U.S. -, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), is inapplicable to the facts of this case. Cf. Maj.Op. at page 1385 n. 5, ante. Simmons held that "where the defendant's future dangerousness is at issue, and state law prohibits the defendant's release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligible.” -U.S. at-, 114 S.Ct. at 2189 (Blackmun, J., joined by Stevens, Souter, and Ginsburg, JJ.); cf. id. at -, 114 S.Ct. at 2201 (O’Connor, J., concurring in judgment, joined by Rehnquist, C.J., and Kennedy, J.).
In Simmons, the prosecution put the defendant’s future dangerousness at issue by asking the jury to answer the question "what to do with [petitioner] now that he is in our midst” and exhorting the jury that a verdict for death would be “a response of society to someone who is a threat. Your verdict will be an act of self-defense.” Id. at -, 114 S.Ct. at 2190-91. In Del Vecchio’s case, the prosecution put Del Vecchio’s future dangerousness at issue by telling the jury to "protect [itself] from people like George Del Vecchio,” to "demand [to be] protected from people like George Del Vecchio.” The prosecution implied that if the jury did not sentence Del Vecchio to death, then he might some day be paroled: 'You must, you can’t leave it up to the experts. You can't trust the experts.... Don't put the decision on somebody else, because ... a few years from now there will be another expert who will be willing to come along and say he's fine.” It is undisputed that Del Vecchio was sentenced pursuant to a statute that eliminated all possibility of parole. Ill.Rev.Stat. ch. 38, § 1003~3-3(d). Under these circumstances, Simmons appears to require “that the sentencing jury be informed that the defendant is parole ineligible.” Simmons, at -, 114 S.Ct. at -. If Del Vecchio is correct that the sentencing jury was not so informed, then his due process rights were violated. It is unnecessary to explore Simmons (which is made complicated by the multitude of opinions issued by the Justices in that case) in greater detail because in Del Vecchio’s case other due process violations are readily apparent.
. For cases that utilize this language in the context of recusal issues, see, e.g., Concrete Pipe and Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, — U.S. -, -, 113 S.Ct. 2264, 2277, 124 L.Ed.2d 539; Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 865 n. 12, 108 S.Ct. 2194, 2205 n. 12, 100 L.Ed.2d 855; Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813, 825, 106 S.Ct. 1580, 1587, 89 L.Ed.2d 823; Schweiker v. McClure, 456 U.S. 188, 196, 102 S.Ct. 1665, 1670, 72 L.Ed.2d 1; Marshall v. Jerrico, Inc., 446 U.S. 238, 243, 100 S.Ct. 1610, 1613, 64 L.Ed.2d 182; Mayberry v. Pennsylvania, 400 U.S. 455, 465, 91 S.Ct. 499, 505, 27 L.Ed.2d 532; In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942; Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11; cf. J.E.B. v. Alabama, — U.S. -, - n. 3, 114 S.Ct. 1419, 1438 n. 3, 128 L.Ed.2d 89 (Scalia, X, dissenting, joined by Rehnquist, C.J., and Thomas, J.) ("Wise observers have long understood that the appearance of justice is as important as its reality.”); Taylor v. Hayes, 418 U.S. 488, 501, 94 S.Ct. 2697, 2704, 41 L.Ed.2d 897 (At issue is whether the judge is able to " 'hold the balance nice, clear and true between the State and the accused....' In making this ultimate judgment, the inquiry must be not only whether there was actual bias on respondent’s part.... ‘Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties,’ but due process of law requires no less.” Citations omitted.).
. In fact, Seventh Circuit jurisprudence has never done so. As Judge Coffey noted very recently, "In our judicial system, 'justice must satisfy the appearance of justice’ and administrative agencies, as well as administrative law judges, must avoid even the appearance of bias or partiality.” National Labor Relations Board v. Q-1 Motor Express, Inc., 25 F.3d 473 (7th Cir. 1994) (Coffey, J., dissenting) (quoting from In re Murchison, 349 U.S. at 136, 75 S.Ct. at 625). If this venerable constitutional principle applies to administrative agencies determining whether to subject a company to a bargaining order, consider with how much more force it must apply to state court judges presiding in capital cases.
. The majority, unlike the concurrence, is willing to concede that "the due process clause sometimes requires a judge to recuse himself without a showing of actual bias.” Maj.Op. at page 1371, ante. It rejects my use of the “appearance of justice” language because it erroneously interprets either that language or my dissent as suggesting that somehow "bad appearances alone” are always and by themselves sufficient to disqualify a judge from presiding over a particular case. See, e.g., id. at 1371, 1372. Rightly rejecting such an unduly broad interpretation of Supreme Court precedent, the majority proceeds to substitute its own inordinately narrow test for when a judge, not shown to be actually biased, must nonetheless recuse himself from a case. Our disagreement about the "appearance of justice” language, then, is really over whether it suggests a very narrow test for judicial recusal or whether it suggests a somewhat broader one. I submit that the Supreme Court’s continued approval of the "appearance” language indicates that in cases like the one at bar, recusal is required by the due process clause.