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4 Brit. J. Am. Legal Stud. 35 (2015)
Giving up Appearances: Judicial Disqualification and the Apprehension of Bias

handle is hein.journals/bjamles4 and id is 461 raw text is: GIVING UP APPEARANCES: JUDICIAL DISQUALIFICATION AND THE APPREHENSION OF BIAS Raymond J. McKoski* ABSTRACT Judicial disqualification rules define the point at which a judge cannot be trusted to decide a case fairly. Because the disqualification of judges corrodes the pre- sumption of impartiality and undercuts the sanctity of the judicial oath, recusals should be based on facts, not appearances. But both the British Commonwealth and the United States remove judges not only for bias, but also when circumstances create an appearance of bias. The United States disqual- ifies a judge when the judge's impartiality might reasonably be questioned. The British Commonwealth bars a judge's participation in a case when the cir- cumstances create an apprehension of bias. Since the same hypothetical, rea- sonable lay person is the arbiter under both tests, the tests produce similar results. Unfortunately, permitting appearances to dictate when a judge may sit fails on a theoretical and practical level. This article details the failures of appearance-based disqualification and proposes a new, fact-based standard for determining the propriety of a judge remaining on a case. The new test removes a judge for actual bias and when the circumstances create a probability or real possibility of bias on the part of the average judge. Appearances play no role in decision. The new test also replaces the hypothetical average lay person with the hypothetical average judge. The average judge rather than the average lay person determines whether the circumstances likely will cause the judge to abandon the role of the impartial magistrate. If so, the judge is disqualified. If not, the judge stays on the case. In this way, facts, not elusive, ephemeral appearances dictate the disqualification decision. CONTENTS I. INTRODUCTION ............................................................. 36 II. THE FOUNDATION OF APPEARANCE-BASED RECUSAL ..... 40 A. Faulty Foundation ......................................................... 40 B. The Fathers of the Appearance of Bias Standard ............... 42 1. Lord H ew art ................................................................... 42 2. Chief Justice William Howard Taft ................................. 44 3. Justice Felix Frankfurter ................................................. 45 C. Appearances and Due Process ...................................... 47

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