dissenting.
When Ricky Dale Railey (“Railey”) was prosecuted in Kentucky state court, the judge who presided over Railey’s case was the nephew of the county prosecutor. George Barry Bertram, the county prosecutor (“Prosecutor Bertram”), personally participated in two hearings in Railey’s case before Marion County Circuit Judge Allen Ray Bertram (“Judge Bertram”); the first hearing addressed Railey’s motion to reduce bond, and the second was Railey’s plea hearing. In ruling upon Railey’s state post-conviction appeal, the Kentucky Court of Appeals noted that trial judges are “vested with the discretion to determine whether bail is appropriate” and concluded that Railey’s constitutional right to an unbiased judge was not “prejudiced” in this case because “Railey has made no showing that the trial court abused its discretion” in the bail determination. Joint Appendix (“J.A.”) at 187 (Ky. Ct. App. Op. at 6). The majority holds that this determination is neither contrary to nor an unreasonable application of clearly *419established federal law. Because the Supreme Court has held in multiple cases that the “appearance of bias” has violated the Due Process Clause and has repeatedly held that judicial bias is a structural error, not susceptible to an analysis evaluating harmlessness or “prejudice,” I believe that the Kentucky Court of Appeals’s decision is contrary to clearly established federal law. Further, under clearly established federal law, Railey’s case involved a violation of the Due Process Clause. Accordingly, I would reverse the district court’s denial of Railey’s petition for a writ of habeas corpus, and I therefore dissent.
I. The Kentucky Court of Appeals’s Adjudication of Railey’s Judicial-Bias Claim and Our Standard of Review
The Kentucky Court of Appeals denied Railey’s judicial-bias claim based on the following analysis, quoted in full:
Railey argues that there was a relationship between the trial court and the prosecution such that the judge should have recused himself. The record shows that the judge is the nephew of the Commonwealth’s Attorney. This relationship was previously known to defense counsel, and was made known to all parties before trial. Railey was notified of the relationship, and waived the disqualification of the judge. The appellant must show bias on the part of the court such that the judge could not be impartial in the case. Brand v. Commonwealth, Ky.App., 939 S.W.2d 358, 359 (1997). No evidence of bias is presented by Railey, other than the contention that he was denied bail. The trial court is vested with the discretion to determine whether bail is appropriate. Abraham v. Commonwealth, Ky.App., 565 S.W.2d 152, 158 (1977). Railey has made no showing that the trial court abused its discretion. The claim that Railey’s constitutional rights were prejudiced is unsupported by the record before this court. We affirm the trial court’s ruling.
J.A. at 187 (Ky. Ct.App. Op. at 6).
The majority notes that Railey has challenged the state court’s factual finding that he “waived” his challenge to Judge Bertram’s involvement in this case, but the majority declines to address this point. Maj. Op. at 399. Instead, the majority first declares that the state court must have meant that Railey “forfeited” his claim and then concludes that, in any event, the dis-positive issue is the legal question of whether the state court’s decision regarding Railey’s claim of judicial bias is contrary to or an unreasonable application of the Supreme Court’s standard for analyzing judicial-bias claims. Id. at 398-401. I agree that the legal inquiry is the dispositive inquiry in this case, but side-stepping this preliminary factual challenge masks the inadequate and flawed nature of the state court’s legal analysis of Railey’s constitutional judicial-bias claim. For that reason, I briefly consider Railey’s factual challenge and the state court’s factual determination of waiver.
The record contains no evidence that Railey knew of or acquiesced to the relationship between the judge and prosecutor in this case. The Kentucky Court of Appeals’s opinion cites no evidence whatsoever in stating that “Railey was notified of the relationship [between the judge and prosecutor] and waived the disqualification of the judge.” J.A. at 187 (Ky. Ct.App. Op. át 6). The warden’s appellate brief contains a similar unsupported assertion. Resp’t Br. at 10. Railey alone cited the record on this issue, noting the following exchange at the close of Railey’s arraignment:
The Court [Judge Bertram]: You’ll go over the judge disqualification with [Railey]?
*420Mr. Hagan: Yes, sir, I will.
The Court: Thank you.
Mr. Hagan: Thank you, Judge.
J.A. at 210 (Arraignment Hr’g Tr. at 6). Railey did not even speak at this brief hearing, and a different prosecutor, Timothy Cocanougher, represented the Commonwealth of Kentucky. The record lacks any other evidence that Railey knew of or consented to the involvement of Prosecutor Bertram in a case over which his nephew, Judge Bertram, was presiding.1 Further, contrary to the majority’s speculation that the state court meant that Railey “forfeited” rather than “waived” this claim,2 a later opinion by the Kentucky Supreme Court, considering a different defendant’s appeal and a challenge to Judge Bertram presiding over a prosecution conducted by Prosecutor Bertram, also referred to waiver. See McCrobie v. Commonwealth, No.2005-SC-0886-MR, 2006 WL 2987082 (Ky. Oct. 19, 2006). In McCrobie, the Kentucky Supreme Court observed that the disqualification of a judge “may be waived by the parties affected” and noted that the defendant in that case “did sign a waiver along with his attorney and the assistant Commonwealth Attorney.” Id. at *2. No such signed waiver appears in the record of this case, and the record lacks any clear indication that Railey waived this challenge.
Insofar as the state court’s finding of “waiver” addressed Railey’s constitutional judicial-bias claim, it appears that the state court’s decision was both “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” 28 U.S.C. § 2254(d)(2), and “contrary to” or “an unreasonable application of’ clearly established federal law as determined by the Supreme Court. See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (“[Wjaiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.”); Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962) (“Presuming waiver from a silent record is impermissible.”). In light of the Kentucky Supreme Court’s subsequent decision in McCrobie, however, I believe that the Kentucky Court of Appeals made the factual determination of waiver in this case as it pertained to Railey’s state-law claim of judicial disqualification under Kentucky *421law, which requires that “[a] judge shall disqualify himself from any proceeding when he is related to any party within a third degree of relationship.” McCrobie, 2006 WL 2987082, at *2 (citing K.R.S. 26A.015(2)(d)(2)).
The significance of determining that the state court’s waiver analysis pertains to a state-law claim is two-fold. First, as the majority observes, “we do not consider on habeas review a state court’s determination of state law.” Maj. Op. at 398 (citing Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005)). Second, the waiver determination accounts for a large portion of the state court’s analysis of Railey’s claim that Judge Bertram should not have presided over his case. See J.A. at 187 (Ky. Ct.App. Op. at 6). As I explain below, the remainder of the state court’s analysis regarding Railey’s constitutional judicial-bias claim is directly contrary to Supreme Court precedent — in which case we review Railey’s judicial-bias claim de novo.
In resolving Railey’s constitutional judicial-bias claim, the Kentucky Court of Appeals stated that “the claim that Railey’s constitutional rights were prejudiced is unsupported by the record before this court.” J.A. at 187 (Ky. Ct.App. Op. at 6) (emphasis added). The majority recognizes that “it is beyond dispute that judicial bias is structural error” that may not be evaluated for harmlessness or prejudice. Maj. Op. at 399 (citing Washington v. Recuenco, 548 U.S. 212, 218-19 & n. 2, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006)). The majority thus must stretch to characterize the state court’s scant analysis of Railey’s constitutional judicial-bias claim as “essentially finding no structural error, which is the kind of error that would flow from a judicial-bias-based due process violation.” Maj. Op. at 414.
Unlike the majority, I see nothing in the state court’s opinion that shows the court found an absence of structural error. To the contrary, the Kentucky Court of Appeals’s opinion appears to have evaluated Railey’s judicial-bias claim for prejudice, an analysis that is wholly incompatible with structural error, which requires automatic reversal. After noting Railey’s argument that the trial court denied him bail, the Kentucky Court of Appeals cited Kentucky law for the proposition that trial courts have considerable discretion in determining bail and then concluded as follows: “Railey has made no showing that the trial court abused its discretion. The claim that Railey’s constitutional rights were prejudiced is unsupported by the record before this Court. We affirm the trial court’s ruling.” J.A. at 187 (Ky. Ct.App. Op. at 6). Although the Kentucky Court of Appeals, in stating that “[t]he claim that Railey’s constitutional rights were prejudiced is unsupported by the record before this Court,” might simply have intended to state the conclusion that no error occurred in this case and that Railey’s constitutional rights were not “violated,” such an interpretation is highly doubtful. The court’s reference to Railey’s constitutional rights follows directly after a sentence highlighting Railey’s inability to show that the trial court abused its discretion in denying him bail' — that is, Railey’s inability to show “prejudice” regarding the trial court’s bail determination.
The majority attributes the state court’s use of the word “prejudiced” to “simple inadvertence,” Maj. Op. at 397 n. 1, despite the context of the opinion, which clearly analyzed Railey’s claim for prejudice. The majority recognizes that courts “often consider whether a party was prejudiced because a constitutional right was violated ” and even acknowledges that “the use of the word ‘prejudiced’ in this context [of a structural error] is clearly incorrect.” Id. *422Nonetheless, the majority “assume[s]” that the state court “meant that Railey was not prejudiced and his rights were not violated” and asserts, without explanation, that such “a reading ... is supported by the entire context of the court’s holding.” Id. As explained above, however, the context is the state court’s analysis that evaluated Railey’s claim for prejudice — i.e., its analysis highlighted Railey’s inability to show that the trial court abused its discretion in denying him bail. A court evaluating a defendant’s claim of a structural error simply has no occasion to refer to prejudice; the state court’s use of the word “prejudiced” here demonstrates that it did not appreciate the nature of Railey’s claim.
Because the Kentucky Court of Appeals treated Railey’s constitutional claim of judicial bias as susceptible to an analysis evaluating any error for prejudice, its opinion is “contrary to” clearly established federal law. The Supreme Court has explained that “[a] state-court decision will certainly be contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases.” Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (emphasis added). And in such a circumstance, “a federal court will be unconstrained by § 2254(d)(1),” id. at 406, 120 S.Ct. 1495, “and de novo review is appropriate.” Fulcher v. Motley, 444 F.3d 791, 799 (6th Cir.2006); see also Panetti v. Quarterman, - U.S. -, 127 S.Ct. 2842, 2858-59, 168 L.Ed.2d 662 (2007) (stating “that § 2254 does not preclude relief if either ‘the reasoning [or] the result of the state-court decision contradicts [our cases]’ ”) (quoting Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002)) (alterations in original).
In Williams, the Supreme Court used its decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to provide a hypothetical example of a state-court decision that would be “contrary to” clearly established Supreme Court precedent. The Court explained that “[i]f a state court were to reject a prisoner’s claim of ineffective assistance of counsel on the grounds that the prisoner had not established by a preponderance of the evidence that the result of his criminal proceeding would have been different,” then such a state-court decision would be “contrary to” the Supreme Court’s “clearly established precedent because we held in Strickland that the prisoner need only demonstrate a ‘reasonable probability that ... the result of the proceeding would have been different.’ ” Williams, 529 U.S. at 405-06, 120 S.Ct. 1495 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Given that the Supreme Court has repeatedly held that judicial bias is a structural error, an analysis that evaluates judicial bias for prejudice is “contrary to” clearly established federal law.
II. Railey’s Judicial-Bias Claim Under Clearly Established Federal Law
Having determined that the Kentucky Court of Appeals, in evaluating Railey’s judicial-bias claim for prejudice, applied a rule and employed reasoning contrary to clearly established federal law, I now turn to analyzing Railey’s claim de novo. Because I conclude that Railey’s judicial-bias claim satisfies the Supreme Court’s standard, I would grant Railey’s petition for a writ of habeas corpus.
In In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955), the Supreme Court held that “[a] fair trial in a fair tribunal is a basic requirement of due process” and explained that “our system of law has always endeavored to prevent even *423the probability of unfairness.” Although the probability of unfairness or the level at which a judge’s interest in a case becomes constitutionally improper “cannot be defined with precision,” the Supreme Court explained that “[cjircumstances and relationships must be considered” and “that ‘Every procedure which would 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 denies the latter due process of law.’ ” Id. (quoting Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 71 L.Ed. 749 (1927)) (emphasis added). Most importantly, the Supreme Court then observed that its standard for analyzing whether a judge faced a “possible temptation” was a “stringent rule [that] 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 to perform its high function in the best way, ‘justice must satisfy the appearance of justice.’ ” Id. (quoting Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11 (1954)) (emphases added).
In Murchison, the Supreme Court thus applied the “possible-temptation test” — a test that it originally set forth in Tumey, which involved a system in which the may- or of an Ohio village received no payment for presiding over a criminal case unless the case resulted in a conviction, Tumey, 273 U.S. at 520, 47 S.Ct. 437; see also Maj. Op. at 401-03 to determine when the Due Process Clause bars a judge from participating in a given case. Under the possible-temptation test, a judge’s participation is unconstitutional when, considering “[cjircumstances and relationships,” there exists “a possible temptation to the average ... judge ... not to hold the balance nice, clear, and true between the State and the accused.” Murchison, 349 U.S. at 136, 75 S.Ct. 623 (quotation omitted). After setting forth this standard, the Court then examined the factual situation in Murchison — involving Michigan’s system in which a judge could act “at the same time [as] the complainant, indicter and prosecutor” on a charge of contempt — and held that Michigan’s system violated the Court’s “possible temptation” standard because “a judge cannot be, in the very nature of things, wholly disinterested in the conviction or acquittal of those accused” when the same judge served as the single-person grand jury that accused the defendant. Id. at 135, 137, 75 S.Ct. 623.
Although the Supreme Court has considered judicial-bias claims on several occasions, see Withrow v. Larkin, 421 U.S. 35, 47 nn. 14 & 15, 95 S.Ct. 1456 (1975) (citing cases), two further cases provide useful illustrations of the Court’s application of the possible-temptation standard. In Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964), and Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974), the Supreme Court again analyzed judicial-bias claims in the context of contempt proceedings. In both cases, the Court’s analysis employed the possible-temptation principle and considered whether the circumstances were such that the judge was capable of “holding] the balance nice, clear, and true between the State and the accused.” Murchison, 349 U.S. at 136, 75 S.Ct. 623 (quotation omitted). In Ungar, the Court characterized the right at issue as the “right to be tried by an unbiased judge without a direct personal interest in the outcome of the hearing.” Ungar, 376 U.S. at 584, 84 S.Ct. 841. The Court concluded that no due process violation occurred because, in contrast to the facts in Murchison and other prior cases, the trial judge “gave notice and afforded an opportunity for a hearing which was conducted dispassionately” such that there was not “an appearance of bias *424that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused.” Id. at 588, 84 S.Ct. 841.
In Taylor, the Supreme Court explained that “contemptuous conduct, though short of personal attack, may still provoke a trial judge and so embroil him in controversy that he cannot ‘hold the balance nice, clear, and true between the state and the accused.’ ” Taylor, 418 U.S. at 501, 94 S.Ct. 2697 (quoting Tumey, 273 U.S. at 532, 47 S.Ct. 437). The Court further observed that “[i]n making this ultimate judgment, the inquiry must be not only whether there was actual bias on [the judge’s] part, but also whether there was ‘such a likelihood of bias or an appearance of bias.’ ” Id. (quoting Ungar, 376 U.S. at 588, 84 S.Ct. 841). The Court concluded that a due process violation had occurred in the case before it because the record disclosed an appearance that the judge “did become embroiled in a running controversy with” the person convicted of contempt. Id.
In light of such cases, the majority thus recognizes that the Supreme Court has “held that something less than actual bias violates constitutional due process.” Maj. Op. at 400. Nonetheless, the majority asserts that the Court has limited those occasions to two circumstances, cases in which the judge has a personal, substantial pecuniary interest and “certain contempt cases, such as those in which the ‘judge becomes personally embroiled with the eontemnor.’ ” Maj. Op. at 400 (quoting Murchison, 349 U.S. at 141, 75 S.Ct. 623 (Reed, J., dissenting)). In doing so, the majority’s crucial contention is that there is “no support for ... the proposition that the possible-temptation test applies to likelihood- or appearance-of-bias issues generally, rather than to only pecuniary interest.” Maj. Op. at 405.
The Supreme Court’s decisions in Murchison, Ungar, and Taylor contradict the majority’s attempt to cabin the possible-temptation standard to cases involving only pecuniary interests.3 Indeed, the majority does acknowledge that Murchison “extended] the possible-temptation test to the first (and, as of yet, only) type of circumstances other than pecuniary remuneration.” Maj. Op. at 402. But pecuniary interests were not at issue in Murchison, Ungar, or Taylor, yet in each case the Court analyzed whether the circumstances were such that they might present a possible temptation for the judge not “to hold the balance between vindicating the interests of the court and the interests of the accused.” Ungar, 376 U.S. at 588, 84 S.Ct. 841. Indeed, in Ungar the Court’s analysis specifically explained that the circumstances involved “an unbiased and impartial judge without a direct personal interest in the outcome of the hearing,” omitting any reference to a pecuniary interest. Ungar, 376 U.S. at 584, 84 S.Ct. 841 (emphasis added).
The majority limits the possible-temptation test to cases involving pecuniary interests (and, apparently, to cases involving a variety of different contempt proceedings) solely on the basis of a questionable reading of the Supreme Court’s opinion in Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986). In Lavoie, the Supreme Court held that a due-process violation occurred because a Justice of the Alabama Supreme Court *425participated in a case when he had a pending lawsuit raising a claim against an insurance company similar to that raised in the case before the Alabama Supreme Court. Lavoie, 475 U.S. at 821-825, 106 S.Ct. 1580. As the majority notes, the Supreme Court considered the insurance company’s various arguments in different sections of the opinion.
In section III.A, the Supreme Court devoted approximately two pages to dispatching the insurance company’s argument that the Alabama Supreme Court Justice’s “general hostility towards insurance companies” was sufficient to state a violation of the Due Process Clause. Id. at 820, 106 S.Ct. 1580. In rejecting this claim in short order, the Court began by quoting language from Tumey stating that “not ‘[a]ll questions 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.’ ” Id. at 820, 106 S.Ct. 1580 (quoting Tumey, 273 U.S. at 523, 47 S.Ct. 437) (alteration and omission in original). The Court stated that “[w]e 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 [the insurance company’s] arguments here fall well below that level.” Id. at 821, 106 S.Ct. 1580. Noting the insurance company’s suggestions that the Alabama Supreme Court Justice’s “general frustration with insurance companies reveals a disqualifying bias,” the Court simply concluded that the insurance company’s “allegations of bias and prejudice on this general basis ... are insufficient to establish any constitutional violation.” Id.
Based on the Court’s cursory analysis of the insurance company’s mere allegations regarding the Alabama Supreme Court Justice’s “general frustration with insurance companies,” the majority here declares that “[i]t is noteworthy that the Court referenced kinship in this portion of the analysis* but it is far more significant that the Court omitted from this portion of its analysis any reference to the possible-temptation test.” Maj. Op. at 404. As the majority notes, in the following section the Court did quote and apply the possible-temptation test in analyzing the insurance company’s (ultimately meritorious) argument that the Alabama Supreme Court Justice’s own pending lawsuit raising a similar insurance claim required his recusal. As a result, the majority contends that reading these two sections of Lavoie “in concert ... offer[s] no support for— and even appear[s] to refute — -the proposition that the possible-temptation test applies to likelihood- or appearance-of-bias issues generally, rather than to only pecuniary interest.” Maj. Op. at 405. As I have already stated, this conclusion fails to account for the Supreme Court’s consistent use of the possible-temptation analysis in multiple other cases such as Murchison, Ungar, and Taylor, which involved a variety of different contempt proceedings. Further, the majority attaches far too much significance to a purported “omission” from the Court’s abbreviated analysis in section III.A of Lavoie, in which the Court simply rejected the clearly meritless argument that “general frustration with insurance companies” amounted to a constitutional basis for disqualifying a judge from hearing a case involving an insurance company.
The crux of the matter is that the Supreme Court has applied the possible-temptation analysis in a wide variety of cases. See Tumey, 273 U.S. at 520, 47 S.Ct. 437 (violation when “[t]here is ... no *426way by which the mayor may be paid for his service as a judge, if he does not convict those who are brought before him”); Murchison, 349 U.S. at 135, 75 S.Ct. 623 (violation when judge acts “at the same time [as] the complainant, indicter and prosecutor” in contempt proceeding); Ward v. Village of Monroeville, 409 U.S. 57, 59, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972) (violation because a possible temptation exists when “the revenue produced from a mayor’s court provides a substantial portion of a municipality’s funds”) (quotation omitted); Taylor, 418 U.S. at 501, 94 S.Ct. 2697 (violation when contemptuous conduct “so embroil[s the judge] in controversy that [the judge] cannot hold the balance nice, clear, and true between the state and the accused”) (quotation omitted); Lavoie, 475 U.S. at 821-825, 106 S.Ct. 1580 (violation when a judge ruled on case involving an issue similar to that raised in the judge’s own pending lawsuit). As the Court explained the possible-temptation test in Murchison, a judge’s participation in a case violates due process when, considering “[c]ircumstances and relationships,” there exists “a possible temptation to the average ... judge ... not to hold the balance nice, clear, and true between the State and the accused.” Murchison, 349 U.S. at 136, 75 S.Ct. 623 (quotation omitted). Although the possible-temptation analysis is a general standard and not a precise rule, the Supreme Court has emphasized that the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 (“AEDPA”), “does not require state and federal courts to wait for some nearly identical factual pattern before a legal rule must be applied.” Panetti v. Quarterman, — U.S. -, 127 S.Ct. 2842, 2858, 168 L.Ed.2d 662 (2007) (quotation omitted).
Before applying this standard to Railey’s claim, I must briefly address the majority’s contention that describing the possible-temptation analysis as clearly established is “best characterized as arguable.” Maj. Op. at 413. The Supreme Court has repeatedly employed the possible-temptation analysis and, on several occasions, held that the mere appearance of bias violated due process. See, e.g., Lavoie, 475 U.S. at 825, 106 S.Ct. 1580 (“mak[ing] clear that we are not required to decide whether in fact Justice Embry was influenced, but only whether sitting on the case then before the Supreme Court of Alabama would offer a possible temptation to the average ... judge to ... lead him not to hold the balance nice, clear and true”) (quotation omitted and omissions in original) (emphasis added). Nonetheless, in reviewing various decisions from our sister circuits, the majority has uncovered some decisions that have asserted, erroneously, that “ ‘the Supreme Court’s case law has not held, not even in dicta, ... that the mere appearance of bias on the part of a state trial judge, without more, violates the Due Process Clause.’ ” Maj. Op. at 412 (quoting Johnson v. Carroll, 369 F.3d 253, 263 (3d Cir.2004)); see also Maj. Op. at 412-13 (discussing Davis v. Jones, 506 F.3d 1325 (11th Cir.2007)).4 The majority then *427makes the astonishing claim that, even assuming the possible-temptation test is clearly established, “the mere existence of these cases ... means that a similar outcome (even if similarly wrong), is not objectively unreasonable, it is instead presumptively reasonable.” Maj. Op. at 414. The majority concludes with the declaration that unless “we are willing to condemn the entire concept of persuasive precedent ... we cannot conclude that the Kentucky court’s decision was an unreasonable application of Supreme Court precedent.” Maj. Op. at 415.
Leaving aside my conclusion that the “contrary to” prong of AEDPA provides the appropriate analysis for this case, the majority’s view of the “unreasonable application” analysis is flawed and, in fact, is an unreasonable application of Supreme Court precedent. In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), Justice O’Connor’s opinion for the Court explicitly rejected the Fourth Circuit’s very similar view of the “unreasonable application” analysis. In Williams, the Court rejected the Fourth Circuit’s prior holding “that a state-court decision involves an ‘unreasonable application of ... clearly established Federal law’ only if the state court has applied federal law ‘in a manner that reasonable jurists would all agree is unreasonable.’ ” Williams, 529 U.S. at 409, 120 S.Ct. 1495 (quoting Green v. French, 143 F.3d 865, 870 (1998)). The Court further explained that a “federal habeas court should not transform the [unreasonable application] inquiry into a subjective one by resting its determination instead on the simple fact that at least one of the Nation’s jurists has applied the relevant federal law in the same manner the state court did in the habeas petitioner’s case.” Id. at 409-10, 120 S.Ct. 1495 (emphasis added). Rather, “a federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state court’s application of clearly established federal law was objectively unreasonable.” Id. at 409, 120 S.Ct. 1495. Finally, the Supreme Court noted that, as “with respect to the ‘reasonable jurist’ standard in the Teague [v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989),] context, ‘[e]ven though we have characterized the new rule inquiry as whether “reasonable jurists” could disagree as to whether a result is dictated by precedent, the standard for determining when a case establishes a new rule is “objective,” and the mere existence of conflicting authority does not necessarily mean a rule is new.’ ” Williams, 529 U.S. at 410, 120 S.Ct. 1495 (quoting Wright v. West, 505 U.S. 277, 304, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992)) (alteration in original, emphasis added). Similarly, the “mere existence” of cases similar to a state court’s opinion does not make the state court’s opinion presumptively reasonable. The majority’s discussion here of “the fundamental theory of persuasive precedent” essentially repeats the very error that the Supreme Court clearly and soundly rejected over eight years ago. Indeed, the majority’s adoption of this view of “persuasive precedent,” given the Supreme Court’s re*428jection in Williams of a materially indistinguishable position, is a startling dereliction of our duty as an intermediate appellate court to follow the precedent of the Supreme Court. See, e.g., Hutto v. Davis, 454 U.S. 370, 375, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982) (stating that “a precedent of [the Supreme] Court must be followed by the lower federal courts”).
Finally, having analyzed the Kentucky Court of Appeals’s adjudication of Railey’s claim and the nature of the Supreme Court’s precedent regarding judicial-bias claims, I apply the possible-temptation standard to Railey’s case. I conclude that Railey’s Due Process Clause rights were violated when Judge Bertram presided over Railey’s case, in which Prosecutor Bertram attended crucial hearings and personally contested Railey’s motions. Although the Supreme Court has stated that “matters of kinship ... would seem generally to be matters merely of legislative discretion,” Lavoie, 475 U.S. at 820, 106 S.Ct. 1580, the Supreme Court has also acknowledged that disqualification is constitutionally required “in the most extreme of cases,” id. at 821, 106 S.Ct. 1580. The situation of an uncle prosecuting a criminal case before his nephew judge is precisely such an extreme case.
Further, I emphasize that, as in Lavoie, holding that a violation of due process occurred here does “not require [] deciding] whether in fact [Judge Bertram] was influenced, but only whether sitting on the case ... would offer a possible temptation to the average ... judge to ... lead him not to hold the balance nice, clear and true.” Id. at 825, 106 S.Ct. 1580 (quotation omitted and final two omissions in original). Considering “[c]ircumstances and relationships,” the task of hearing and deciding upon legal arguments advanced by one’s uncle offers more than a “possible temptation” to hold a balance that is not “nice, clear and true between the State and the accused.” Murchison, 349 U.S. at 136, 75 S.Ct. 623.
This violation of Railey’s due-process rights cannot be harmless. Chapman v. California, 386 U.S. 18, 23 & n. 8, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (stating that the right to an impartial judge is a “constitutional right[ ] so basic to a fair trial that [its] infraction can never be treated as harmless error”) (footnote omitted). Thus, “the ‘appearance of justice’ will best be served by vacating the decision and remanding for further proceedings.’ ” Lavoie, 475 U.S. at 828, 106 S.Ct. 1580.
For the reasons stated above, I would reverse the judgment of the district court and remand the case with instructions to issue the writ of habeas corpus. I respectfully dissent.
. The Kentucky Circuit Court, in overruling Railey’s motion to vacate his guilty plea and judgment, simply stated that "the Court advised the Defendant and each of his attorneys of the relationship at arraignment” and that "Hagan is a local and regular practicing attorney in this circuit and is quite familiar with the relationship. The Defendant was advised of the relationship and waived the disqualification of the judge.” J.A. at 128 (Circuit Ct. Order at 4). The quoted language lacks any citation to the record. Further, as the quotation in the text above demonstrates, Judge Bertram did not advise Railey of the family relationship at the arraignment; Judge Bertram spoke to Railey's attorney. Further, although Judge Bertram did request that Railey’s attorney "go over the judge disqualification” with Railey, Judge Bertram did not specify any particular ground for disqualification.
. This speculative conclusion is particularly unfounded given the language in the state-court opinion: the court asserted that "Railey was notified of the relationship, and waived the disqualification of the judge.” J.A. at 187 (Ky. Ct.App. Op. at 6) (emphasis added). One would hardly say that, after a police officer “notified” a suspect of her Miranda rights, the suspect "forfeited” the right to remain silent by giving a statement. Rather, the inquiry would focus on whether the alleged waiver was knowing, intelligent, and voluntary. The problem in this case is that the record lacks any evidence demonstrating that the court did, in fact, notify Railey about the relationship and that Railey’s decision to proceed was knowing, intelligent, and voluntary.
. Indeed, in a footnote to its claim that "the possible-temptation test applies ... to only pecuniary interest’’ cases, Maj. Op. at 405, the majority even acknowledges that its limitation is incorrect, conceding in the footnote that "it is evident” that the possible-temptation test applies to cases other than those involving pecuniary interests, such as contempt proceedings, id. at 405 n. 5.
. In contrast to the cases that the majority identifies, several other cases, including one from our circuit, have held or stated that it is clearly established federal law that the appearance of bias may violate the Due Process Clause. See Crater v. Galaza, 491 F.3d 1119, 1131 (9th Cir.2007) (stating the Supreme Court precedent reveals "three circumstances in which an appearance of bias — as opposed to evidence of actual bias-necessitates recusal”); Jones v. Luebbers, 359 F.3d 1005, 1012 (8th Cir.2004) ("[C]learly established Federal law, as determined by the Supreme Court of the United States, recognizes not only actual bias, but also the appearance of bias, as grounds for disqualification”) (quotation and internal citation omitted); Kinder v. Bowersox, 272 F.3d 532, 540 (8th Cir.2001) ("There is *427no question that the law on judicial bias is clearly established: a criminal defendant is constitutionally required to be tried before an impartial judge, and the likelihood or appearance of bias, even in the absence of actual bias, may prevent a defendant from receiving a fair trial.”); Phelps v. Hamilton, 122 F.3d 1309, 1323 (10th Cir.1997) ("To state a due process claim that a judge is biased, the claimant must show either that actual bias existed, or that an appearance of bias created a conclusive presumption of actual bias.”); Anderson v. Sheppard, 856 F.2d 741, 746 (6th Cir.1988) (stating that due process ”require[s] not only an absence of actual bias, but an absence of even the appearance of judicial bias”).