Judicial bias - The state we're in

Nancy Erika Smith takes a sceptical approach towards the impartiality of justice in the US and asks whether judges and juries can put aside firmly held beliefs just because they have taken an oath to do so.

Sir Stephen Sedley’s article about judge recusal is probing and provocative. He points out our universal view that judges with a pecuniary interest in the outcome of a case must recuse themselves. Unfortunately, the West Virginia case (Caperton) is not the worst example of that principle being violated.


In Pennsylvania a judge was recently sentenced to jail for sending juveniles to a private prison for minor (and in some cases even legal) behaviour. It turns out that the judge was receiving a per capita kick-back from the owners of the private prison. It took years to uncover and traumatized many young people in the process.

Those states which elect judges are finally dealing with one aspect of the problem by introducing rules which prohibit judges from sitting in any case in which any lawyer or participant donated $2,500 or more to the judge’s campaign.

Judicial bias

Our federal bench is not elected, but the partisanship that has recently infected our legislative and executive branches seems to have extended to our judiciary at the highest levels.This raises more complicated issues regarding recusal.

Two of the four dissenters in the West Virginia case discussed by Sir Stephen, Caperton, have been accused of ties to litigants before our highest Court. Common Cause, an advocacy group which promotes open government, has petitioned the Justice Department seeking an investigation into the propriety of Justices Thomas and Scalia attending “political retreats” paid for by the Koch brothers, billionaire conservatives who founded a group that spent tens of millions of dollars to support “tea party” conservative candidates. Their political action committee spent another $2.5m on last year’s elections, and benefitted directly from the decision by the Court in Citizens United v Federal Election Commission. Justices Scalia and Thomas were in the 5-4 majority which ruled that the government cannot limit corporate funding of political broadcasts during elections.

The value of recusal

These ties certainly inspire scepticism about the impartiality of the justices. They also create the paradox described by Sir Stephen: they decide whether they should decide. In the Pinochet case Lord Goff of Chieveley noted that public confidence in our judicial system requires a low bar for recusal. While Sir Stephen agrees that “justice must be seen to be done as well as actually done,” he argues that most judges can put aside their beliefs because they take an oath to do so. Being a cynical American trial lawyer, I do not put judges on such a high human and moral pedestal. The behaviour of some members of the current United States Supreme Court may explain that. While I agree with the argument that lawyers should not use recusal motions to delay or “judge shop,” I think that fear is overblown. What lawyer wants to try a case in front of a judge she has tried to remove? My disagreement is with the idea that acting swiftly is a consideration in this paradigm. What’s the rush? A fair trial in front of an impartial judge is worth waiting for.

Jury as check and balance

So is an impartial jury. In America one of the most important checks on bias by judges is the use of juries to decide both civil and criminal matters. By abolishing peremptory challenges, and the use of juries in most civil cases, the British system has guaranteed that some will not get a trial I would call fair. Thorough jury selection takes time which the “machinery of justice” should provide.

In my experience, the first 12 people chosen from a jury pool are neither fair nor impartial, especially to minorities. With thorough voir dire the prejudices of potential jurors can be explored.

Having an impartial jury is especially important for civil rights lawyers. We represent those who are not in the majority. We represent those most likely to be the victims of prejudice. Though there is obviously plenty wrong with the American justice system, Britain’s is even worse when it comes to the representation of minorities and women on the bench. That makes it even more essential to take the time to screen out carefully those jurors who think women are lesser human beings. Or those who think African immigrants do not deserve equal rights. Or those who believe that Muslims should convert to a more palatable British religion.

In my sexual harassment trials jury selection can take up to a week. It takes that long because with the slightest questioning so many jurors reveal real bias. They say things like: “You can’t even say hello any more without some woman trying to get some money out of it.” I do not believe that jurors can put that view aside and decide the case on its merits under the law.

Partisan juries are not impartial juries

The gay rights case described by Sir Stephen is a good example, though not for the reasons Lord Carey thought. A few years ago the great majority of Americans thought that gays did not deserve civil rights. Many still do. It took five days to pick a jury in a trial in which my partner, Neil Mullin, and I established that the New Jersey Law Against Discrimination protects gay couples from harassment and disparate treatment by towns, ie police, fire fighters, the library, etc., working in concert. Many jurors expressed contempt for gays, but claimed they could be fair. Many jurors spoke of our clients as sinners, but claimed they could be fair. Why? Because they wanted to sit on a high-profile case and rule against gays. It was not hard to find 12 white men to sit in judgment of blacks in the Jim Crow South either. Being a juror gives one power. The power is especially felt by one who has strongly held beliefs. Thus, white men convicted many an innocent black. A recent study by Harvard University found that white male judges overrule discrimination verdicts more than any other kind of case. They took an oath. They believe they are being fair. But fair to them incorporates their own prejudice. Should someone in the Ku Klux Klan sit on a race discrimination case? Without juror examination, he can and does.

Equal justice for all

Until our judiciaries truly reflect the diversity in our societies and until we evolve into societies that overwhelmingly believe in true equality for all, our justice systems will protect the unpopular, the minorities, and the outcasts only if we have fair and impartial jurors and fair and impartial judges. I don’t trust them to make that decision themselves. The process should not be viewed as degrading or wasteful of judicial resources. The process should be examined with pride in the goal of equal justice for all.

Nancy Erika Smith is a civil rights lawyer practising in the US.

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