by Grant Hammond. Oxford: Hart Publishing, 2009. 208pp. Hardcover. $90.00/£45.00. ISBN: 9781841132600.
Reviewed by Robert M. Howard, Department of Political Science, Georgia State University. Email: polrmh [at] langate.gsu.edu.
Most political scientists who study law and courts acknowledge, in one way or another, the influence of ideological or attitudinal preferences on judicial voting. While there may be normative concerns about the use of ideology and judicial voting, few would consider ideological preference as a reason to disqualify a judge from a case. Just because a liberal judge is likely to vote liberally and a conservative judge is likely to vote conservatively is no reason to disqualify that judge from voting on any particular matter. We assume that regardless of personal preference that the judge will rule on the matter within the boundaries of the facts and the law.
However, a judge who has a financial or other personal stake in the outcome of a case is another matter. Most of us clearly would think that a judge who stands to personally benefit from the disposition of a matter should not be able to rule or vote on that particular outcome. In this case we assume that the judge will not be able to rule on the matter with the normal boundaries of judicial decision making. Thus, it is not preference or bias per se that should lead to judicial qualification, but bias that makes it difficult if not impossible for the judge to approach the case, or appear to approach the case, in a neutral manner. When this type of bias is evident, we expect the judge to disqualify, or recuse, themselves from the matter.
Trying to find that line between permissible and impermissible bias is the subject of Grant Hammond’s fine book that uses a comparative perspective on the law of recusal in the United States, the United Kingdom and other Commonwealth nations. Justice Hammond, now Judge of the Court of Appeal of New Zealand, is uniquely qualified to write the book having previously practiced law in New Zealand, and worked as a Professor of law in New Zealand, the United States and Canada. Thus he brings the perspectives of the practitioner, academic and the judge to the question of recusal. While there are no definitive answers the book will be an essential first step for any scholar seeking to explore this understudied issue.
The book is logically constructed and the outline actually follows the book’s subtitle. In a short opening chapter the author lays out the essential questions, then moves on to reviewing the basic principles in the British Commonwealth countries and in the United States, then examines the process and ends with a discussion of the problems.
Hammond opens the book by highlighting two important examples of judges refusing to recuse themselves and [*149] the diametrically opposite consequences of the refusal. The first example is that of a Lord Hoffman whose failure to disclose his earlier work for Amnesty International led to the cancellation of an earlier groundbreaking decision against General Pinochet. In contrast to that is the refusal by Justice Antonin Scalia to recuse himself from a case involving an energy policy advisory committee chaired by then Vice President Dick Cheney. Cheney and Scalia had recently gone duck hunting and the Sierra Club, among others, argued that this created the appearance of bias. Scalia noted in his memorandum rejecting recusal, that recusal is “effectively the same as casting a vote against the petitioner” (542 U.S. 913, 916, 2003).
These two cases, Hammond notes, illustrate the potential of recusal to have significant effect on the outcome of a case and the difficulties in determining when bias should lead to recusal. In large part recusal acts to protect both the litigants from bias and the integrity of the judiciary and the concerns differ for trial court judges and appellant judges. So clearly an economic interest in the outcome is grounds for recusal because it harms the litigants and damages the integrity of the judiciary. However beyond that obvious conflict, what is the standard for recusal when there is apparent as opposed to actual bias? Hammond uses several illustrative cases both at the trial and appellate level and introduces several potential standards but in the end it is impossible to find any definitive solution.
For example a Canadian judge of Jewish background was asked to recuse herself from a Palestinian immigration case, not because of her religion, but because of her spouse’s work on behalf the Canadian Jewish Congress. Is this apparent bias sufficient ground for recusal? Other judges, prior to their appointments to the bench, had some tangential connection to the present matter. For example, Justice Hugo Black, in a case involving the interpretation of the Fair Labor Standards Act was asked to recuse himself from a case involving the FSLA and its application to United Mine Workers because the Union’s lawyer was Black’s law partner 24 years earlier. Black refused, and his was the deciding vote upholding the Union’s action in a 5-4 decision. Black refused to recuse himself despite the apparent vehement opposition of Justice Robert Jackson who contended this was an obvious conflict of interest. Of course, Jackson was the dissenting opinion author in the matter.
Differences in the outcomes are in part attributable to the differences in the types of courts and their positions on the legal hierarchy, and the differences between the commonwealth countries and the United States. In the Commonwealth nations, despite the legal autonomy all possess, recusal is a matter of case law, whereas in the United States, at least at the Federal level, it is governed by statute. However, as Hammond skillfully demonstrates, interpretation of the federal statutes have still left significant discretion in the decisions of the judges, so the practical effect of statutory as opposed to case law is minimal. The crux of the issue is the appropriate standard. In both the Commonwealth countries and the United States, as Hammond shows it can vary from the ‘reasonable person’ standard to that of a ‘fair minded and well informed [*150] observer’ to whether there is a ‘real danger’ of bias from a member of the tribunal. Ultimately the judge has significant discretion as to the appropriate standard and thus the recusal decision.
The book is a worthwhile purchase. It is very readable and generally concise, albeit one has to understand that Judge Hammond is both an academic and a judge and therefore a reader looking for short, succinct, sentences will be a bit disappointed. However, I do have a few quibbles. First and foremost, if there is one element missing from the book it is an exploration of the strategic nature of recusal. It is implied, but not openly discussed, throughout the book. Litigants certainly use recusal strategically. If a litigant thinks they either will, or did not, receive a fair hearing the litigant can seek a recusal motion, first from the judge herself and then from an appellate court. It might seem distasteful to openly “forum shop” but a lawyer has the right to do whatever is in the client’s interest. Often this is done after the trial is complete and at great expense to both sides. Thus recusal is a potentially effective trial strategy. Of course the danger for the lawyer and litigant is to seek recusal and then lose. In that case the losing party might actually create a bias in the judge that was not present beforehand.
Perhaps even more interesting and less explored is the strategic use, or lack thereof, of recusal by judges. How often do judges, particularly on appellate courts, fail to recuse themselves because to do so would lead to a less than preferred outcome? Are judges more likely to recuse themselves when the vote is not close? Are state judges up for reelection or retention more likely to recuse themselves from difficult cases such as death penalty decisions? The stories of Black and Scalia’s refusals to recuse themselves from these cases show that these justices understood how critical their votes were and that recusal might lead to a less than preferred outcome from their individual perspectives.
Finally, there is at least one obvious error in the text. In reference to the testimony of Nicholas Katzenbach during the Robert Bork confirmation hearings, Hammond refers to Katzenbach as the “then Attorney General.” Bork was nominated by then President Ronald Reagan in 1987. Katzenbach was an Attorney General in the Lyndon Johnson administration from 1965 to 1966. Thus it should read “former Attorney General.”
CHENEY v. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, 542 U.S. 913(2003).
JEWELL RIDGE COAL CORP. v. LOCAL NO 6167 UNITED MINE WORKERS OF AMERICA, 325 U.S. 161 (1945).
© Copyright 2010 by the author, Robert M. Howard.