Giving Up Appearances: Judicial Disqualification and the Apprehension of Bias

4 British Journal of American Legal Studies 35 (2015)

35 Pages Posted: 10 Aug 2015

See all articles by Ray McKoski

Ray McKoski

University of Illinois Chicago School of Law

Date Written: August 10, 2015

Abstract

Disqualifying judges corrodes the presumption of impartiality and undercuts the importance of the judicial oath. Decisions affecting such important interests should be based on facts and not on appearances. Both the British Commonwealth and the United States, however, remove judges not only for actual bias but also when the circumstances create an appearance or apprehension of bias. Under appearance-based disqualification, the reasonable lay observer decides whether an apprehension of bias exists. Allowing the average person on the street to make the recusal call, the theory goes, will build public confidence in the impartiality of the judiciary.

But the reasonable lay person of disqualification jurisprudence, whether residing in Australia, Canada, New Zealand, the United Kingdom, or the United States, does not remotely resemble a member of the public. Indeed, when unmasked the lay observer bears a remarkable resemblance to the judge deciding the recusal issue. And this should come as no surprise since the reasonable person was conceived, birthed, and raised by judges. The failure of appearance-based disqualification rests squarely with the inability of this fictional lay observer to represent the views, values, or judgment of the public.

This Article, prepared for a symposium at the Birmingham City University School of Law, suggests a new disqualification regime based on facts rather than appearances. The proposal would disqualify a judge when the circumstances create a real probability or possibility of bias on the part of the average judge. Appearances would play no role in the decision. Most importantly, under the new standard the hypothetical average judge would replace the average lay person as the decision-maker.

Keywords: judicial disqualification, recusal, Lord Hewart, reasonable person, Model Code of Judicial Conduct

JEL Classification: K10, K40

Suggested Citation

McKoski, Ray, Giving Up Appearances: Judicial Disqualification and the Apprehension of Bias (August 10, 2015). 4 British Journal of American Legal Studies 35 (2015), Available at SSRN: https://ssrn.com/abstract=2641881

Ray McKoski (Contact Author)

University of Illinois Chicago School of Law ( email )

315 South Plymouth Court
Chicago, IL 60604
United States

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