Judges, whether presiding over bench and jury trials as they do in the United States, or serving as specially-trained careerists as they do in civil law countries, are at the heart of the fact-finding and legal inquiries required of judicial officers. As the individuals charged with implementing an entire nation’s justice system, judges carry a weighty mantel.
We expect all judges to have certain baseline characteristics, including competence, independence, and, of particular significance to this Article, impartiality. A judge lacking impartiality taints case outcomes and makes a mockery of so-called “justice.”
Often honored in legal commentary but downplayed in practice is the importance—indeed, the necessity—that judges are perceived as being impartial. Perceptions of justice ultimately determine the judiciary’s reputation and success by instilling public confidence in the courts. Regardless of nationality, a nation’s judiciary is measured in terms of its fairness and impartiality, both actual and perceived.
We begin this Article with a brief look at the prevailing international norms for judicial impartiality. We take a close look at five common law countries and their approaches to the need for judicial impartiality. We explain that there is an acknowledged international norm requiring a competent and impartial judiciary. Although this norm is not seriously disputed anywhere, adherence to the norm frequently falls short everywhere. The guiding principles are well-intentioned, but they fail to more fully address the core concern that justice both be and appear to be impartial.
After a brief look internationally, we take a pointed, fine-grained look directly at the United States itself. With that background, we conclude that two consistent problems lie in judicial recusal worldwide—problems concerning both the process and the substance of determining when a judge should be disqualified from hearing a particular matter. The substantive problem concerns an undue emphasis on an objective recusal standard, to the neglect of appearances of impropriety. The process problem stems from a notion that is central to the need for impartiality—the fundamental premise of Anglo-American jurisprudence, and one repeated throughout the globe—that “no man should be a judge in his own case.” This ideal, repeated so frequently that it has become a cliché, can be found in the Latin, “nemo debet esse iudex in propria causa”; in the United States, it is found in The Federalist Papers and more recently in Caperton v. A.T. Massey Coal Co., which we discuss below. Yet almost universally, judges are the first and often the last evaluators of their own bias and impartiality—it is the challenged judge who rules on her own impartiality. This process issue is joined by a troubling dilemma that is not confined to law—the difficulty that human actors have in judging their own conduct when challenged by parties whose sensibilities differ from their own.