What not everyone in this country will know is that in the 39 states of the US where judges are elected, it is routine for candidates’ campaigns to be sponsored by the law firms, and sometimes by the litigants, who will be appearing before them.

What Europeans may find remarkable is not only that it was by a single vote that the US Supreme Court eventually struck down the West Virginia decision for apparent bias, but that it was the four judicial conservatives, Roberts, Scalia, Thomas and Alito, who voted to uphold the judgment. The majority ruling cited James Madison’s words, writing in the Federalist in 1787, that “no man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment and not improbly corrupt his integrity”.

It is the application of Madison’s words which is fraught with difficulty. The first main difficulty is to decide what makes someone else’s cause the judge’s own. The second, which is far from being merely technical, is who decides and how.

The risk of bias is not limited to favouritism. There is an equal and opposite risk that a judge, in endeavouring not to show favour, will bend over backwards and lose his balance that way. The only safe route is the exit.

The dissenting judgment in Caperton sets out a list of 40 questions allegedly begged by the majority opinion. They all drive at a single object: to demonstrate that once the test for recusal  is set at any but the highest constitutional level, the grounds for removing judges from the court, and with them the spate of motions for recusal, will be unending. That is a serious consideration, and one which the British courts, which set the bar much lower, are already having to face up to. But serious as it is, it cannot be decisive. As Chief Justice Holt said three centuries ago, when the same argument was advanced in the great election corruption case of Ashby v White (1703) 91ER126, if wrongs are multiplied, remedies must be multiplied.

Pecuniary Interest

Pecuniary interest, precisely because it is completely unrefined, is the simplest and most radical ground of recusal. It appears to operate independently of the will of the parties, rendering a decision void even if a party raises the matter only after finding it has lost. As a result, judges who recognise that a party to a case in their list is a company in which they hold shares make sure routinely that the case is tried by somebody else without waiting for an objection. But it has not been unknown in modern times for a judge, typically in the chancery division, to mention to the parties that he or she holds shares in one of them and to have the objection summarily waived.

General Pinochet

In 1998, Lord Hoffmann sat as a member of the appellate committee of the House of Lords on the prosecutors’ appeal against the High Court’s decision to quash the Spanish extradition warrants against General Pinochet on the ground of sovereign immunity. A group of individuals and organisations including Amnesty International were allowed to appear by counsel as interveners. By three to two the Law Lords held that Pinochet could be extradited to Spain. One of the three composing the majority, Lord Hoffmann, was chairman of a trust which conducted Amnesty International’s charitable work in the UK, and his wife was an employee of the organisation itself.

Setting aside their own judgment, the Law Lords for the most part stressed that simply supporting a cause was not a disqualification: it was Lord Hoffmann’s active role as a trustee of an organisation that was siding with the prosecutor which made the difference. Lord Goff of Chieveley pushed the door wider open: there could be cases, he said, where “the interest of the judge in the subject matter of the proceedings arising from his strong commitment to some cause or belief … could shake public confidence in the administration of justice”.

The Common Law

The common law world today asks whether a sensible observer, knowing what the case was about, who the parties were and what connection the judge had with any of them or with the issues in the case, would think that the judge might be influenced by these things. The trouble with any such simple formula is that it immediately demands fuller detail.

  • How cautious or suspicious is a sensible person?
  • What kind of link will she think matters?
  • How robust will she expect the judge to be?

The minority in the Caperton case set store by the last of these questions. The hypothetical observer needs to be aware that the judge on taking office has sworn a public oath to do right by all manner of people without fear or favour, affection or ill-will. How is the observer to gauge the risk that such a judge will break his or her oath? Indeed why, the Caperton dissenters asked, should the sensible onlooker expect it at all?

The first answer is that in the case of a pecuniary interest, the law itself presumes it.

  • The second is that judges are human.
  • The third is that, whatever the reality, appearances matter, and nowhere more so than in the administration of justice. But the question remains: why should the judicial oath not be regarded, save in the sharpest and clearest cases, as an answer to the appearance of partiality?

The tests for recusal...

Whatever the tests for recusal, who decides whether they are met, and how do they go about deciding? Judges as a rule get little notice of the cases they are going to hear, and when they do see the list of cases they will be taking the following week (or sometimes the following day) it is not always apparent from the name of the case who is going to be involved or what the case is going to be about. The result is that the parties, if they are lucky, may get notice of a possible conflict of interest a week or so before the trial; if unlucky, a day or so before; and possibly not until the outset of the hearing.

What the public will not know is that, without waiting for objections, judges from time to time ask to be replaced on cases in which they recognise that they have a possibly conflicting interest. The difficulties occur in cases in which, while recognising that there is a connection which might give rise to an objection, the judge him or herself does not consider it sufficient to require recusal. At the same time, by disclosing it and inviting submissions about it the judge has implicitly recognised that others might take a different view. And that is where the problems start.

The temptation to take the line of least resistance and abandon the case is one that has to be resisted. It is a principle of prime importance that no party may choose its tribunal, whether by insisting on a particular judge or by objecting to one without sufficient cause. So no judge should stand down simply because one side has raised, or has taken advantage of the judge’s disclosure of, a possible disqualifying interest.

 …and who decides upon them

Someone has to decide whether the objection taken on the basis of it is well founded. But who? And how?

  • In a court of three or five judges, this can often be accomplished by letting the other members of the court advise the judge on the challenge. It also, and importantly, enables the judge to state his or her own position, which may not have been fairly or accurately represented in the objection.
  • In a jury trial, there is a judge on hand to decide the issue, and an appeal court if things nevertheless go wrong.
  • But what of the judge who is about to sit alone to try a major piece of litigation and is confronted with an objection that could not arise until it was known which judge’s list the case stood in?

There may be a need for some kind of fire brigade protocol in such a situation. If humanly possible, the objection ought to be renewed before a different judge or court and be determined in time for the trial to go ahead with the same judge if recusal is not required or with another judge if it is. But the important thing is that the system should not compound one paradox – a judge who is unbiased but might reasonably be thought not to be – with a further paradox: a judge who, in order to decide whether he will be sitting as judge in his own cause, has to sit as judge in his own cause.

Private views neither a qualification nor disqualification

In the recent, much publicised case of McFarlane v Relate Avon Limited the counselling service Relate, which subscribes to a code of ethics forbidding discrimination on grounds of sexual orientation, employed a counsellor who believed that as a Christian he ought not, in the course of counselling same-sex couples, to endorse physical activity which the Bible taught was sinful.

His dismissal was upheld by both an employment tribunal and the Employment Appeal Tribunal. When the matter got to the Court of Appeal, a statement from Lord Carey, a former Archbishop of Canterbury, found its way into the hands of the press. He proposed that the application for permission to appeal should be heard by a specially constituted panel of judges with a “proven sensitivity to religious issues” and the setting up of a “specialist panel of judges designated to hear cases engaging religious rights”. It is central to my theme that what a judge privately thinks or believes neither qualifies nor disqualifies him in the ordinary way for deciding sensitive and controversial cases.

Lord Justice Laws, refusing permission to appeal, said: “In a free constitution such as ours there is an important distinction to be drawn between the law’s protection of the right to hold and express a belief and the law’s protection of that belief’s substance or content. The common law and ECHR Article 9 offer vigorous protection of the Christian’s right and every other person’s right to hold and express his or her beliefs, and so they should. By contrast, they do not, and should not, offer any protection whatever of the substance or content of those beliefs on the ground only that they are based on religious precepts. These are twin conditions of a free society.” ?

Sir Stephen Sedley is a retired Lord Justice of Appeal. An unabridged version of this article has been published in the London Review of Books (www.lrb.co.uk)

US Supreme Court headnote

“After a West Virginia jury found respondents, a coal company and its affiliates (hereinafter Massey), liable for fraudulent misrepresentation, concealment, and tortious interference with existing contractual relations and awarded petitioners (hereinafter Caperton) $50m in damages, West Virginia held its 2004 judicial elections.

Knowing the State Supreme Court of Appeals would consider the appeal, Don Blankenship, Massey’s chairman and principal officer, supported Brent Benjamin rather than the incumbent justice seeking re-election.

His $3m in contributions exceeded the total amount spent by all other Benjamin supporters and by Benjamin’s own committee. Benjamin won by fewer than 50,000 votes. Before Massey filed its appeal, Caperton moved to disqualify now Justice Benjamin under the Due Process Clause and the State’s Code of Judicial Conduct, based on the conflict caused by Blankenship’s campaign involvement. Justice Benjamin denied the motion, indicating that he found nothing showing bias for or against any litigant. The court then reversed the $50m verdict.”