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Cambridge University Press978-0-521-19060-2 - Judiciaries in Comparative PerspectiveEdited by H. P. LeeIndexMore information

INDEX

Abella, Justice Rosalie (Canada),recusal 311

absolute neutrality as realistic objective351–7

access to justiceArticle 6 ECHR 6as core value 5–6, 13

accountabilityappointment procedures 68–70chapter summary 4and freedom of speech 259–60independence, tension with 9as requirement for independence 10role of judges, as to 162–4

acting judges, appointment 32–5,89–90, 91, 104–6

administrative independence,entitlement 17

administrative judges, independence 19American Bar Association (ABA)

Model Code of Judicial Conduct266–72, 274–5, 380–1, 386–90,396

response to political attacks onjudges 275

American Law Institute (ALI),principles of justice system13–15

Andrews, Neil, principles of justicesystem 12, 13–15

anti-bias rule, characteristics361–2

appeal cases, criticism of judges inpolitically controversial 262

appointments see also specificjurisdictions, e.g., Canada

acting judges 32–5, 89–90, 91, 104–6

bodies 30–2, 68, 70–1, 118–19,120–6 see also judicialcommissions/councils

comparison summary 536–7‘depoliticisation’ 273–4devolution of regional powers

118–19diversity 8, 119–20, 121–2, 125–6,

139effectiveness of system 113–16efficient process 102–3election campaigns, high cost of 266ethnic communities 67–8ethnic representation 71fixed-term warrants 90–1to higher courts 56ideological issues 139–40and independence 51–2Judicial Appointments Commission

70–1by judicial commissions 30–2,

101–6, 118Kable principle 33–5liberal attacks 265Lord Chancellor’s powers 121magistrates 120, 134–5Ombudsman’s role 131parliamentary scrutiny 122–3patronage 139political issues 52, 53–4, 55–6, 119,

135–40President’s power 135–40Prime Minister’s power 121–2procedures 28–30, 51–8, 67–71,

101–6, 135–40, 143–7public confidence 27–8reform 30–2, 52–4, 118–20, 121–2

542

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reform recommendations 55secondment 91–2short-term political aims

138–9Supreme Court see Supreme Court

belowwomen judges 32, 71, 104

apprehension of bias see reasonablesuspicion of bias test

arbitrators, bias by 340–1Arbour, Justice Louise (Canada),

extra-judicial service 435–6associational activities, non-judicial

functions 523–6attacks on judges see criticism of judgesattitudinal bias, disqualification for

313, 371–2Attorney-General

power to appoint judges 67–8role 456–7

Australiaappointments

accountability issues 27–8, 30acting judges 32–5judicial commission for 30–2Kable principle 32–5process 28–30reform 30–2summary of issues 45women 32

automatic disqualification forpecuniary interests 292–5

bias, reasonable suspicion testchapter summary 279–80constitutional issues 296–7fair-minded lay observer, role of

286–92judge’s financial interest 292–5main issues 279–80necessity exception to anti-bias

rule 296–9operation 280–3purposes 283–6summary of issues 299–300underlying purposes 297–9use of 348waiver, doctrine of 295–9

Bruce, Justice Vince, resignation 40

Cahill, Ron, resignation as ChiefMagistrate of ACT 41

Callinan, Justice Ian, inquiry intoconduct called for 38–9

complaints handling 41–4compulsory questioning of suspects,

issuing of warrants 418–20conduct, guidance 168–9, 426–7Constitution, separation of powers

404–5detention orders, issuing of 418–20disqualified judge, pecuniary

interestsfailure to disclose interests, effect

281recusal 292–5

duty to sit 352–3federal courts, separation of powers

404–5freedom of speech

chapter summary 154‘citizen judge’ approach 164–9constitutional guarantee 170–3constitutional provision 154–7current debate on 164–9impartiality 165–6Kilmuir rules 157–64main issues 153–4summary of issues 173–4

human rights charters 156–7impartiality, appearance of,

constitutional provision 296–7independence

constitutional provision 159–60remuneration, legislative

provision 159interception of telecommunications,

issuing of warrants 416–17judicial commissions

as to appointments 30–2as to removal 41–4

judicial powerdefinition 405–6limits 405–10

Kable principleappointments 33–5non-judicial functions 405, 422–6

Kilmuir rules 158

index 543






Australia (cont.)Kirby, Justice Michael, freedom of

speech controversy 153–4Marks, Justice Kenneth, Royal

Commission 414–15Mason, Sir Anthony, approach to

openness 162–4Mathews, Justice Jane, compatibility

of non-judicial function412–14

McClellan, Justice Peter,apprehension of bias 287–9

Murphy, Justice Lionel, attemptedremoval 36–8

non-judicial functions‘chameleon’ doctrine 406commissions and inquiries,

service on 414–15connections with executive 415constitutional issues 404–5examples 403–4guidance for judges 426–7historically regarded as judicial

405–6incompatibility criteria 411incompatibility test 410–14independent tribunals, service on

415judicial functions distinguished

405–10judicial power, limits 405–10Kable principle and state courts

405, 422–6main issues 403–4persona designata exception

410–22public confidence 411–12security orders and warrants,

issuing of 416–22and separation of powers 404–5summary of issues 426–7validity of statutory functions 407

pecuniary interestsautomatic disqualification for

292–5failure to disclose, effect 292–5

preventative detention orders,issuing of 418–20

removalinability, for 86–7procedures 35–41

role of judgeswithin legal system 154–7openness as to 162–4

security orders and warrants, issuingof 416–22

separation of powers 404–5state courts, separation of powers

405state judges

acting judges, appointment 32–5appointment 30complaints handling 41–4judicial appointments

commissions 31removal 35–41, 44–5

surveillance devices, issuing ofwarrants authorising use417–18

suspension of judges 44–5telecommunications, issuing of

interception warrants 416–17Vasta, Justice Angelo, removal

39–40women judges, appointment 32

Austria, provincial judges, power toappoint 49

automatic disqualification 292–5, 349,370–1 see disqualification

Barrington, Sir Jonah (UK), removal84, 127

Bastarache, Justice Michel (Canada),apprehension of bias 313–14

behaviour see conductBenjamin, Justice Brent (US),

apprehension of bias 392–6Berger, Justice Thomas (Canada),

resignation 178–80bias see also specific jurisdictions, e.g.,

Canadaabsolute neutrality as realistic

objective 351–2anti-bias rule, characteristics 361–8appearance of, and anti-bias rule

362–8

544 index






by arbitrators 340–1automatic disqualification 370–1behaviour as indicator of actual bias

337–8case examples 328–36comparison summary 538–9connection between matter and

decision, articulation 281criminal appeals 326danger of suspicion of, extra-judicial

service 443–5definition 302–5essence of 301failure to disclose interests, effect

281, 359identification, steps for 280–1impartiality, dichotomy with 301–2increase in claims 345by jurors 340–1matter suggesting, categories 280–1and natural justice 301necessity exception to anti-bias

rule 342political bias, danger of, non-judicial

functions 439presumption of impartiality 352prior decision-making 341–2reasonable suspicion

articulation 281recusal in response to see recusaltest see reasonable suspicion of

bias testrelations between opposing lawyers

and judges 338–40test see reasonable suspicion of bias

testBienvenue, Justice Jean (Canada),

removal of 186–7bills of rights see human rights chartersBingham, Lord (UK), freedom of

speech controversy 249–50Binnie, Justice Ian (Canada),

apprehension of bias320–1

Boilard, Justice Jean-Guy (Canada),recusal 319

Bork, Judge Robert (US), nomination140

Brennan, Justice William (US),nomination 138–9

Bruce, Justice Vince (Australia),resignation 40

Cahill, Ron, Chief Magistrate of ACT(Australia), resignation 41

Callinan, Justice Ian (Australia),inquiry into conduct called for38–9

Cameron, Justice Edwin (SouthAfrica), freedom of speechcontroversy 235–6

CanadaAbella, Justice Rosalie, recusal 311appointments

acting judges 91election, public support 58to higher courts 56and independence 51–2numbers appointed 49parliamentary scrutiny 122–3political issues 52, 53–4, 55–6procedures 51–8provincial judges 54reform 52–4reform recommendations 55Supreme Court 57–8

Arbour, Justice Louise, extra-judicialservice 435–6

Bastarache, Justice Michel,apprehension of bias 313–14

Berger, Justice Thomas, resignation178–80

biasapplication of law of 305–17attitudinal bias 313chapter summary 302danger of, extra-judicial service

439definition 302–5group memberships of judges

307–10main issues 301–2pecuniary interests 305–7personal relationships of judges

310–13prejudice 313

index 545






Canada (cont.)recusal 317–21summary of issues 321

Bienvenue, Justice Jean, removal of186–7

Binnie, Justice Ian, apprehension ofbias 320–1

Boilard, Justice Jean-Guy, recusal319

Charter of Rights and Freedoms50–1, 175–6

commissions, government policy/advisory, extra-judicial service432–4, 439, 446

conduct 58–65Cosgrove, Justice Paul, resignation

63–4, 188–9discipline

instances 63–5issue 47Judicial Council see Judicial

Council belowprovincial judges 62–3reform proposals 59sensitivity training 47United States contrasted 62

election, public support 58electoral boundary commissions,

extra-judicial service 436executive role of judges 430extra-judicial service

advocate for, danger of being442–3

appendage of government, dangerof being 440–1

bias, danger of suspicion of 443–5caution against 428–9chapter summary 429conflict with government, danger

of 441–2constitutional limits 429–30continuing service, danger of

445–6ethical reform proposals 448–51executive role 430impact on judiciary 439–46increase 428and independence 439–46

Judicial Council Position Paper448–51

judicial review, danger of 443–5main issues 428–9political bias, danger of 439rationale 438reform proposals 446–51statutory limits 430–1statutory reform proposals 447–8summary of issues 451types 431–8

federal tribunals, extra-judicialservice 437–8

Flynn, Justice Bernard, freedom ofspeech controversy 182–3

freedom of speechBerger affair 178–80case-by-case approach to limiting

189–91cases as to 183–5chapter summary 176criticism of judges 176–8guidance for judges 191–3increase of judges’ 181–3limits 185–9main issues 175–6summary of issues 193–4

Gomery, Justice John, apprehensionof bias 314, 439, 442–3, 444–5

Gratton, Justice Fernand,resignation 63

Hall, Justice Emmett, RoyalCommission on HealthcareServices 432–4, 439

honorary orders advisory councils,extra-judicial service 436–7,446

human rights, Charter of Rights andFreedoms 50–1

Iacobucci, Justice Frank, recusal319–20

independenceappointment process and 51–2challenges to 51and extra-judicial service 439–46legislative provision 49, 50main issues 46–51perceptions and realities 18

546 index






research into 46, 47, 48–9and rule of law, maintenance of

428security of tenure 51and separation of powers 160–1,

429–30Somalia Inquiry 440–2, 443–4

investigative inquiries, extra-judicialservice on 432, 439

Judicial Councilcomposition 46–7creation 59–60formal inquiries 61inquiries, instances 61–2, 63–5Inquiry Committee 62panels 61Position Paper on extra-judicial

service 448–51procedures, assessment of 60recusal, statements of principle

318judicial review, danger of, extra-

judicial service 443–5L’Heureux-Dube, Justice Claire,

freedom of speech controversy181, 315–17

Marshall Jr., Donald, inquiry intojudges’ conduct of trial 65,185–6

Matlow, Justice Theodore, inquiryinto conduct 64–5, 184–5,318–19

McClung, Justice John, freedom ofspeech controversy 181,315–17

McLachlin, Chief Justice Beverley,apprehension of bias 315

Moreau-Berube, Justice Jocelyne,removal of 187–8

non-judicial functions see extra-judicial service above

O’Connor, Justice Dennis, service oninquiries 433–4

Order of Canada advisorycouncil, extra-judicial service436–7

Paperny, Justice Marina, recusal309–10

parliamentary scrutiny ofappointments 122–3

provincial judgesappointment, power of 49appointment procedures 54discipline 62–3independence, challenges to 51removal 59

public inquiriesexecutive role of judges 430extra-judicial service 431–4,

447–51recusal 317–21removal

instances 58–9legislative provision 49provincial judges 59

remuneration, legislative provision49

resignation of judges 63–4Royal Commission on Healthcare

Services 432–4, 439Ruffo, Justice Andree, freedom of

speech controversy 183–4, 313scandalising the court offence,

abolition 176–8security of tenure, legislative

provision 51separation of powers 160–1, 429–30Somalia Inquiry and independence

440–2, 443–4special prosecutors, extra-judicial

service as 434–6Supreme Court, appointment to

57–8Cayman Islands, removal of judge 82–3‘chameleon’ doctrine as to non-judicial

functions 406charitable activities, non-judicial

functions 526–8charters of rights and freedoms 50–1,

156–7, 175–6 see also EuropeanConvention on Human Rights(ECHR)

Chase, Justice Samuel (US), attemptedimpeachment 141

‘citizen judge’ approach to role ofjudges 164–9

index 547






codes and guides on conduct 168–9,191–3, 196–7, 235, 242–4,266–72, 275, 318, 372–3, 380–1,386–90, 396, 426–7, 448–51,489–92

colleagues on same bench as groundsfor recusal 354

collective independence, importance3, 16

commissions see also judicialcommissions/councils

legal services 6, 81service on 120–1, 414–15, 432–4,

436, 439, 446, 460–8, 469–70,513–17

Commonwealth Guidelines on JudicialIndependence (Latimer HouseGuidelines) 22–3

complaints handling see also specificjurisdictions, e.g., Canada

bias cases 328–36, 377discipline 73–5procedures 41–4, 73–5, 129–32statistics 75statutory provision 455

compulsory questioning of suspects,issuing of warrants asnon-judicial function 418–20

conductcodes and guides 168–9, 191–3,

196–7, 235, 242–4, 266–72, 275,318, 372–3, 380–1, 386–90, 396,448–51, 489–92

freedom of speech controversies181–9

guidance 426–7impropriety, appearance of 389–90inquiries into 35–41, 58–65, 78–9,

80–2, 108–11, 377‘misbehaviour’ 82–5outside court, and public

confidence 8‘proved misbehaviour’, and public

confidence 38public confidence 65, 84, 87–8, 249whether indicating actual bias

337–8confidence see public confidence

conservative attacks on judgesevangelical conservatives 261‘liberal activism’, campaign against

263–5constitutional courts

appointments to 102establishment 96freedom of speech issues 227–31

constitutional protection/provisionagainst bias 390–6freedom of speech 156–7, 159–60,

170–3, 258impartiality 346–7infrastructure for protection 19–21removal 454security of tenure 76–8, 80, 159–60

constitutional separation of powers seeseparation of powers

contempt of court 222–33core values of judicial system

Article 6 ECHR as statement of10–15

categorisation, approaches to 13chapter summary 4generally 4values 5–10

Cosgrove, Justice Paul (Canada),resignation 63–4, 188–9

courts martial judges, independence 19court system, structure 134–5, 143, 456criticism of judges

ability to respondimportance 273individual’s attacks 206–8media attacks see mediaprinciples 215–16

abolition of laws restricting 176–8conservative attacks

evangelical conservatives 261‘liberal activism’, campaign

against 263–5cyclical nature of 260–2‘depoliticisation’ response 273–4historical cycles 260judges’ response 273–5and legal realism 261–2‘liberal activism’, campaign against

263–5

548 index






political reasons for 260–2progression generally 260and public confidence 163–4, 537–8

Dadelszen, Judge Paul von (NZ),freedom of speech controversy205

defamation, judge’s right to sue 258–9democracy argument for freedom of

speech 211‘depoliticisation’ of appointments

273–4detention orders, issuing as non-

judicial function 418–20devolution of regional powers,

appointments 118–19discipline see also complaints handling;

specific jurisdictions, e.g.,Canada

comparison summary 536–7constitutional issues 71–2effectiveness 113–16, 142immunity 72–3instances 63–5issue 47‘misbehaviour’ 82–5Ombudsman’s role 131procedures 58–65, 71–5, 106, 126–7,

140–3, 148provincial judges 62–3reform proposals 59sensitivity training 47standards 386–90

disclosure of interests, effect of failure281, 359

disqualified judgeattitudinal bias 371–2automatic disqualification 292–5,

349, 370–1criteria 386–90criteria for disqualification 386–90failure to disclose interests, effect

359, 370–1group memberships 373guidance for disqualification 372–3nemo judex in re sua principle 361pecuniary interests 292–5, 370–1recusal see recusal

relations with parties 371–2relations with solicitors 373–4,

376–7relations with witnesses 373self-disqualification see recusalwaiver of right to object to 374–5

diversityappointments process 8, 119–20,

121–2, 125–6, 139and public confidence 8

double reasonableness requirement forbias test 354

duty to give reasons for decisions, andpublic confidence 7–8

duty to sit, recusal and 352–3Dworkin, Ronald, views on freedom of

speech 212–13

education and training, sensitivitytraining 47

efficiencyappointments 102–3argument for non-judicial functions

500as core value 5, 13impairment 503maintenance of 46–7, 65, 70and procedural fairness 5

electionbias 396high cost of campaigns 266and legal realism 397public support 58

electoral boundary commissions,extra-judicial service 436

Elias, Rt Hon. Dame Sian, Chief Justiceof New Zealand, freedom ofspeech controversy 200

Embry, Justice Eric (US), apprehensionof bias 392

ethnic communitiesappointments 67–8representation in judiciary 71, 104tribunals 453–4

European Convention on HumanRights (ECHR)

Article 6access to justice 6

index 549






European Convention on HumanRights (cont.)

duty to give reasons fordecisions 8

fair trial, right to 22impartiality 366and judges’ independence 22–3procedural fairness 11reasonable suspicion of bias test

366as statement of core values of

judicial system 10–15judge’s criticism of 250–2

European Court of Human Rights andfreedom of speech 211–12

European Union (EU), standards ofjudicial independence 22–3

evangelical conservatives and criticismof judges 261

executive patronage, knighthood as 93executive role of judges 430extra-judicial functions see

non-judicial functions

failure to disclose interests, effect 281,359, 370–1

fair hearing, meaning 11fair-minded lay observer see lay

observerfair trial, Article 6 ECHR right to 22fairness see procedural fairnessfamily relationships as grounds for

recusal 310–13financial interests see pecuniary

interestsfixed-term warrants 90–1Flynn, Justice Bernard (Canada),

freedom of speech controversy182–3

freedom of speech see also specificjurisdictionsm, e.g., Canada

and accountability 259–60Bill of Rights and 197–9‘citizen judge’ approach 164–9comparison summary 537–8consequentialist arguments for

210–12constitutional protection 170–3, 258

controversies 181–9, 200–9convention as to 196criticism of judges 176–8defamation, judge’s right to sue

258–9democracy argument for 211Dworkin, Ronald, views of

212–13general principle, justifications for

210government criticism of judges

253–5guidance for judges 168–9, 191–3,

196–7, 235, 242–4, 266–72, 275importance generally 209–10increase 181–3and independence 253–5, 259–60individualist arguments for

212–13judges’ government role and 200justice argument for 211–12Kilmuir rules 157–64limitation 185–9Madison, James, views of 211Mill, John Stuart, views of 210–11oversight 197principles 158–9and public confidence 162–5, 167,

169, 186, 187, 190–1and rule of law 162–4and separation of powers 159–61statutory limits 196truth argument for 210–11

fundamental values see core values ofjudicial system

Gibraltar, removal of judge forinability 86

Gomery, Justice John (Canada),apprehension of bias 314, 439,442–3, 444–5

governmentcriticism by judges 244–9criticism of judges 253–5

Gratton, Justice Fernand (Canada),resignation 63

group memberships, disqualificationfor 307–10

550 index






guides and codes on conduct 168–9,191–3, 196–7, 235, 242–4,266–72, 275, 318, 372–3, 380–1,386–90, 396, 426–7, 448–51,489–92

Hall, Justice Emmett (Canada), RoyalCommission on HealthcareServices 432–4, 439

hearings and inquiries, public, serviceon 431–4, 447–51, 460–8,487–9, 517–19

Hlophe, Judge John (South Africa),inquiry into conduct 108–11

Hoar, Judge Ebenezer (US),nomination 139

honorary orders advisory councils,extra-judicial service 436–7,446

Hope, Lord (UK), freedom of speechcontroversy 247–8

human rights charters 50–1, 156–7,175–6, 453 see also EuropeanConvention on Human Rights(ECHR)

Hutton, Lord (UK), Dr David Kellyinquiry 507–10

Iacobucci, Justice Frank (Canada),recusal 319–20

ideological issues and appointments139–40

immunity of judges 72–3impartiality see also independence

absolute, as realistic objective 351–2and Article 6 ECHR 366bias, dichotomy with 301–2as boundary to freedom of speech

250–2challenges to 388–9common law and Roman law

principle compared 346–7conflict with independence 239–42constitutional provision 346–7idea of judge 383importance 165–6, 380–2importance as common theme

533–4

presumption of 352and public confidence 540–1reputation for, as rationale for

non-judicial functions 451impeachment 141–2impropriety, appearance of 389–90inability, removal for 86–8incapacity, removal for 85–6incompatibility test as to non-judicial

functions 480–6incompetence as ground for

removal 10independence see also impartiality

and abolition/restructuring of courts92–3

accountability as requirement 10accountability, tension with 9administrative independence,

entitlement 17aspects, distinction between 15challenges to 51chapter summary 4civil law and common law

contrasted 17collective independence, importance

3, 16compromising practices 89–93conflict with impartiality 239–42constitutional provision see

constitutional protection/provision

contact with executive 457as core value 9–10, 13different national approaches 3, 9economic importance 3and extra-judicial service 439–46and freedom of speech 253–5,

259–60importance as common theme

533–4, 535–6and increasing role of judges 10internal independence, importance

3, 16–17international law as to 22–3investigative inquiries, extra-judicial

service 440–2, 443–4legal writers’ views 12main issues 3–4

index 551






independence (cont.)Montreal Declaration 19perceptions and realities 18personal independence,

characteristics 15–16principles 20–1protection 19–21and public confidence 162–5, 261–2,

410–11, 416, 540–1and public honours awards 93reasonable suspicion test 18–19regulation generally 19–20remuneration, legislative provision

49, 159, 454–5research into 46, 47, 48–9and rule of law 162–4, 428security of tenure 51and separation of powers 9–10,

429–30standards 15–16, 17–18, 22–3substantive independence, meaning

15–16summary of issues 23

India, state judges, power to appoint 49individualist arguments for freedom of

speech 212–13informed observer see lay observerinquiries and hearings, public, service

on 431–4, 447–51, 460–8,487–9, 517–19

inquiries into judges’ conduct 35–41,58–65, 78–9, 80–2, 108–11, 377

interception of telecommunications,issuing of warrants as non-judicial function 416–17

internal independence, importance 3,16–17

International Bar Association (IBA),standards of judicialindependence 22–3

International Institute for theUnification of Private Law seeUNIDROIT

international law as to judges’independence 22–3 see alsoEuropean Convention onHuman Rights (ECHR)

internet and criticism of judges 262

investigative inquiries, extra-judicialservice 432, 439, 440–2, 443–4,476–7, 494–5

Israelcourts’ recognition of importance of

public confidence 6–7increased role of judges, political

motives for 12–13

Jackson, Justice Robert (US),appointment as NuremburgTrials chief prosecutor434–5

judges/judiciaryaccountability see accountabilityacting judges, appointment 32–5,

89–90, 91, 104–6administrative judges, independence

19appointment see appointmentsattacks on see criticism of judgesbias see bias, reasonable suspicion of

bias test‘citizen judge’ 164–9conduct see conductconfidence in see public confidenceconstitutional protection/

provision see constitutionalprotection/provision

contemporary role 534–5courts martial judges, independence

19criticism see criticism of judgesdiscipline see disciplinediversity see diversityelection see electionethnic representation 67–8, 71, 104,

453–4financial interests see pecuniary

interestsfreedom of speech see freedom of

speechfunction see judicial functionimpartiality see impartialityinability as grounds for removal 86incompetence as ground for removal

10independence see independence

552 index






‘liberal activist’ judges, campaignagainst 263–5

magistrates see magistratesmisbehaviour, removal for 38,

82–5neutrality see impartialitynon-judicial functions see non-

judicial functionsopposing lawyers and judges,

relations between, as groundsfor bias 338–40

pay and pensions see remunerationpecuniary interests see pecuniary

interestspersona designata 410–22personal independence,

characteristics 15–16personal relationships and bias

310–13policy advice from 432–4, 439, 446,

471–2power see judicial powerprejudice by, law of bias applied to

313presumption of impartiality 352protection see constitutional

protection/provision‘proved misbehaviour’ and public

confidence 38provincial judges see provincial/state

judgespublic confidence see public

confidencerecusal see recusalremoval see removalremuneration see remunerationresignation, instances 40, 41, 63–4,

81, 143, 178–80, 188–9role see role of judgessecondment 91–2security of tenure 76–8, 80selection see appointmentssensitivity training 47skills as rationale for non-judicial

functions 438speeches see freedom of speechstate judges see provincial/state

judges

substantive independence, meaning15–16

suspension 44–5teaching and writing 471, 519–23temporary judges, appointment

32–5, 89–90, 91test for bias see reasonable suspicion

of bias testtribunal judges, independence

18–19, 22women judges, appointment 32, 71,

104judges’ rules on freedom of speech

191–3, 196–7, 235, 242–4judicial commissions/councils

appointments 30–2, 46–7, 101–6,118

complaints handling 130–1complaints statistics 75discipline 58–65, 73–5, 106,

218–22effectiveness 113–16establishment 99–101, 118–19guidance 168–9, 191–3, 196–7, 235,

242–4, 266–72, 275, 448–51,489–92

judicial review 88–9membership 123–4overview 120–3record to date 124–6removal 41–4scrutiny of 131service on 487

judicial decisions, judges’ rules oncomments as to 197

judicial functionnon-judicial functions distinguished

405–10and procedural fairness 424

judicial independence seeindependence

judicial powerdefinition 405–6limits 405–10

judicial reviewdanger of, extra-judicial service

443–5removal 88–9

index 553






judicial system, core values see corevalues of judicial system

jurors, suspicion of bias 340–1, 374justice argument for freedom of speech

211–12justice ministry, role 456–7

Kable principleappointments 33–5non-judicial functions 405, 422–6

Kilmuir rules 157–64, 195, 196Kirby, Justice Michael (Australia),


knighthood as executive patronage 93

Latimer House Guidelines on JudicialIndependence 22–3

lay observerbalanced approach 367characteristics 336–7description 367–8knowledge attributed to 287–9,

336–7, 368matters considered by 287meticulousness of consideration by

287–9, 336–7public confidence in 287–9,

336–7reasonable suspicion of bias test

286–92reasonableness standard 366–7

legal realismand criticism of judges 261–2and election 397influence 383–6

legalism and public confidence159–60

L’Heureux-Dube, Justice Claire(Canada), freedom of speechcontroversy 181, 315–17


liberal attacks on appointments 265‘litigation explosion’ and criticism of

judges 260–1Lord Chancellor see United Kingdom

(UK)

Madison, James, views on freedom ofspeech 211

magistratesappointment 120, 134–5non-judicial functions 488–9

Marks, Justice Kenneth (Australia),Royal Commission 414–15

Marshall Jr., Justice Donald (Canada),inquiry into conduct 65, 185–6

Mathews, Justice Jane (Australia),compatibility of non-judicialfunction 412–14

Matlow, Justice Theodore (Canada),inquiry into conduct 64–5,184–5, 318–19

McClellan, Justice Peter (Australia),apprehension of bias 287–9

McClung, Justice John (Canada),freedom of speech controversy181, 315–17

McLachlin, Chief Justice Beverley(Canada), apprehension ofbias 315

McCluskey, Lord (UK), freedom ofspeech controversy 250–2

media criticism of judgesability to respond 208–9and public confidence 9

Mill, John Stuart, views on freedom ofspeech 210–11

Ministry of Justice, role 456–7misbehaviour, removal for 38, 82–5Montreal Declaration on

Independence of Justice 19Moreau-Berube, Justice Jocelyne

(Canada), removal of 187–8Mount Scopus Standards,

independence 15–16, 17–18Murphy, Justice Lionel (Australia),

attempted removal 36–8

natural justice, bias and 301necessity exception to anti-bias rule

operation 342and reasonable suspicion of bias test

296–9nemo judex in re sua principle 361neutrality see impartiality

554 index






New Zealand (NZ)abolition of courts, statutory 92–3appointments

accountability 68–70acting judges 89–90Attorney-General’s power 67–8chapter summary 66fixed-term warrants 90–1inferior courts 69–70Judicial Appointments

Commission 70–1Judicial Appointments Unit 68main issues 66Maori community 67–8, 71procedures 68–70secondment 91–2standardisation 68–70superior courts 68–9women 71

Attorney-General, role 456–7bias see also recusal below

by arbitrators 340–1behaviour as indicator of actual

bias 337–8criminal appeals 326distinctive New Zealand approach

326–7increase in claims 345by jurors 340–1necessity exception to anti-bias

rule 342prior decision-making as basis

341–2relations between opposing

lawyers and judges 338–40Saxmere cases 328–36

Bill of Rights 453commissions of inquiry, service on

460–8complaints handling

procedures 73–5Saxmere cases 328–36statistics 75statutory provision 455

constitutional systemdemocratic tradition 454features 452–3judges’ position within 452–7

court system, structure 456Courts Executive Council, service on

458criticism of judges, ability to respond

individual’s attacks 208–9media attacks 206–8principles 215–16

Dadelszen, Judge Paul von, freedomof speech controversy 205

democratic tradition 454discipline

chapter summary 66complaints handling 73–5complaints statistics 75constitutional issues 71–2immunity 72–3main issues 66

Elias, Rt Hon. Dame Sian, ChiefJustice, freedom of speechcontroversy 200

ethnic communities see Maoricommunity below

freedom of speech see also criticismof judges; ability to respondabove

Bill of Rights and 197–9chapter summary 195, 196controversies 200–9convention as to 196general principle 209–13Judges’ Bench Book rules 196–7judges’ freedom, general principle

213–15judges’ government role and 200as to lecture by judge 200limits 196–7main issues 195oversight 197principles 209–16statutory limits 196summary of issues 216trial judge’s 205–6

government system, judges’ positionwithin 452–7

Governor-General, service as 468–9Heads of Bench, service on 457higher courts management

committees, service on 459–60

index 555






New Zealand (NZ) (cont.)human rights Bill 453immunity of judges 72–3independence

and abolition/restructuring ofcourts 92–3

compromising practices 89–93contact with Executive 457knighthood as executive

patronage 93remuneration, legislative

provision 454–5summary of issues 94–5

Independent Police ConductAuthority, service on 470

inferior court judges, appointment68–9

inferior court judges, removalattempts 80–2protection 80

informed observer, characteristics336–7

inquiry commissions, service on460–8

inter-bench committees, service on459

Judges’ Bench Book, freedom ofspeech rules 196–7

judicial committees, service on457–60

Judicial Conduct Commissionercomplaint to 334–6judicial review 88–9procedures 73–5statistics 75

judicial decisions, judges’ rules oncomments 197

judicial support committees, serviceon 459–60

Justice Ministry, role 456–7Kilmuir rules 195, 196knighthood as executive patronage

93lecture by judge, free speech

controversy 200legal committees, service on

458–9legal system, size 452

Maori communityappointments 67–8representation in judiciary 71Waitangi Tribunal 453–4

Ministry of Justice, role 456–7non-judicial functions

advisory commissions 465–6flexibility 470inquiries, service on 460–8investigative inquiries 463–4judicial committees 457judicial review, for avoidance of

467–8reasons for use of judges 466

parliamentary select committees,judges’ rules on submissions197

parliamentary select committees,service on 470–1

Parole Board, service on 470pecuniary interests, former

approach 322–3policy advice from judges 471–2President of Law Commission,

service as 469–70public debate, judges’ rules on

participation 196–7public roles of judges

examples 468–73summary of issues 473

recusalcurrent situation 345domestic bodies 342–3former approach 322–3informed observer, characteristics

336–7and integrity of justice system 324local government 343–5premature 327–8prior decision-making as basis

341–2self-examination 323test 324–6

removalattempts 78–9, 80–2chapter summary 66constitutional protection 454inability 86–8

556 index






incapacity 85–6judicial review 88–9main issues 66misbehaviour 82–5protection 76–8, 80

remuneration, legislative provision454–5

restructuring of courts, statutory92–3

Saxmere cases 328–36secondment of judges 91–2security of tenure 76–8, 80sentencing policy, free speech

controversy 200Siemer, Vincent, attacks on judges

208–9statutory abolition/restructuring of

courts 92–3superior court judges, appointment

69–70superior court judges, removal

attempts 78–9protection 76–8

Supreme Court, establishment455–6

system of government, judges’position within 452–7

teaching and writing by judges 471trial judge, free speech controversy

205–6tribunals

characteristics 472service on 472–3system 456

Waitangi Tribunal 453–4Wilson, Justice Bill, Saxmere cases

328–36women judges, appointment 71

newspapers see mediaNiekerk, Barend van (South Africa),


non-judicial functions see also specificjurisdictions, e.g., Canada

acceptable activities 487administrative tasks 487advisory commissions 465–6advocate for, danger of being 442–3

appendage of government, danger ofbeing 440–1

bias, danger of suspicion of 443–5caution against 428–9, 477–8‘chameleon’ doctrine 406commissions and inquiries, service

on 414–15, 432–4, 439, 513–17comparison summary 539–40conflict with government, danger of

441–2connections with executive 415constitutional issues 404–5constitutional limits 429–30continuing service, danger of 445–6efficiency argument for 500ethical reform proposals 448–51examples 403–4, 468–73executive role 430flexibility 470guidance for judges 426–7, 448–51,

497–8historically regarded as judicial

405–6impact on judiciary 439–46incompatibility criteria 411, 482incompatibility test 410–14, 480–6increase 428and independence 439–46independent tribunals, service on

415inquiries, service on 460–8investigative inquiries 463–4judges’ skills as rationale 438, 466judicial functions distinguished

405–10judicial power, limits 405–10judicial review, danger of 443–5Kable principle 405, 422–6limits 429–31magistrates 488–9persona designata exception

410–22prohibition of payment for 112–13political bias, danger of 439and public confidence 411–12, 420,

423, 428–9, 446, 447, 448, 451,485–6, 499, 500–1, 509, 513,520, 521–2, 524

index 557






non-judicial functions (cont.)rationale 438reasons for use of judges 466, 476reform of rules as to 446–51,

486–7reputation for impartiality as

rationale 451security orders and warrants, issuing

of 416–22and separation of powers 404–5,

410, 429–30, 479–80statutory reform proposals

447–8tribunals 472–3types 431–8, 487–9validity of statutory functions 407

Northern Ireland, JudicialAppointments Commission118

Nuremburg trials, service as specialprosecutors 434–5

observer see lay observerO’Connor, Justice Dennis (Canada),

service on inquiries 433–4offence of scandalising the court,

abolition 176–8Ombudsman, complaints handling

role 131opposing lawyers and judges, relations

between, as grounds for bias338–40

orders and warrants, issuing as non-judicial function 416–22, 487

Paperny, Justice Marina, recusal309–10

Parker, Judge John J. (US), nomination140


parliamentary select committees,judges’ rules on submissions197

parties to cases, disqualification forrelations with 371–2

patronage and appointments 139pay and pensions see remuneration

pecuniary interestsautomatic disqualification 292–5,

349, 370–1earlier approaches to 322–3law of bias applied to 305–7reasonable suspicion of bias test

292–5persona designata exception as to non-

judicial functions 410–22personal independence, characteristics

15–16personal relationships of judges, law of

bias applied to 310–13Pickles, Judge James (UK), threatened

dismissal 128policy advice from judges 432–4, 439,

446, 471–2political associations as grounds for

recusal 355political attacks on judges see criticism

of judgespolitical bias, danger of, non-judicial

functions 439prejudice by judges, law of bias applied

to 313press see media criticism of judgespresumption of impartiality 352preventative detention orders, issuing

as non-judicial function 418–20prior decision-making as grounds for

bias 341–2procedural fairness

and Article 6 ECHR 11as core value 5, 13danger of undermining 443–5, 448and efficiency 5and judicial function 424

‘proved misbehaviour’ of judge, andpublic confidence 38

provincial/state judges see also specificjurisdictions, e.g., Canada

acting judges, appointment 32–5appointment

power of 49procedures 30, 54

attacks on appointments 265–6complaints handling 41–4discipline 62–3

558 index






election campaigns, high cost of 266independence, challenges to 51judicial appointments commissions

31removal 35–41, 44–5, 59

public confidencein appointments 27–8and behaviour outside court 8conduct 65, 84, 87–8, 249as core value 6–9, 13courts’ recognition of importance of

6–7and criticism of judges 163–4, 395,

537–8diversity 8and duty to give reasons for

decisions 7–8and freedom of speech 164–5, 167,

169, 186, 187, 190–1importance as common theme

540–1and independence 162–4, 261–2,

410–11, 416in lay observer 287–9and legalism 159–60and media criticism 9and non-judicial functions 411–12,

420, 423, 428–9, 446, 447,448, 451, 485–6, 499,500–1, 509, 513, 520,521–2, 524

as normative standard 411–12and procedural fairness 5and ‘proved misbehaviour’ of

judge 38and reasonable suspicion of bias test

285–6, 292, 295, 297–300,303–4, 326, 339, 361–2, 365,367, 373–4, 444

and recusal 8 see also recusaland rule of law 162

public debate, judges’ rules onparticipation 196–7

public hearings/inquiries, service on430, 431–4, 447–51, 460–8,487–9, 504–10, 517–19

public roles of judges see non-judicialfunctions

race issues as to recusal 354–5reasonable suspicion of bias test

and Article 6 ECHR 366articulation of suspicion 281choice of test 350–1, 369–70considerations 351constitutional issues 296–7decision to use 350definition of bias 302–5double reasonableness requirement

354establishment 349–50jurors 374lay observer, role of 286–92nature of 362and necessity exception to anti-bias

rule 296–9operation 280–3pecuniary interests 292–5public confidence in 285–6, 292, 295,

297–300, 303–4, 326, 339,361–2, 365, 367, 373–4, 444

purposes 283–6underlying purposes 297–9use of 18–19, 353, 369–70, 371–4waiver of right to object 295–9

recusal see also specific jurisdictions,e.g., Canada

appeals against refusal of application359–60

application 358–9attitudinal bias 313automatic, undesirability of 282circumstances

general 347–8special situations 354–7

colleagues on same bench 354comparison summary 538–9conduct 355–7criteria for decision 282current debasement 345domestic bodies 342–3and duty to sit 352–3earlier approaches to 322–3failure to recuse, effect of

unlawful 359family relationships 310–13group memberships 307–10

index 559






recusal (cont.)informed observer, characteristics

336–7and integrity of justice system

324no call for 357–8pecuniary interests 305–7personal relationships 310–13prejudice 313premature 327–8prior decision-making as basis

341–2prior political associations 355procedures 357–60, 375–7proceedings, conduct of 355–7and public confidence 8race issues 354–5rules 317–21self-examination 323statements of principle 318successful application for, retrial

upon 282–3test 324–6

regional devolution of powers,appointments 118–19

removal see also specific jurisdictions,e.g., Canada

comparison summary 536–7constitutional protection 454effectiveness of system 113–16impeachment 141–2inability, for 86–8incapacity, for 85–6incompetence, for 10instances 58–9, 80–2, 186–8by judicial commissions 41–4judicial review 88–9misbehaviour, for 82–5procedures 35–41, 58–65, 76–89,

106, 126–7, 140–3, 147–8provincial/state judges 35–41,

44–5, 59remuneration, legislative provision 49,

159, 454–5resignation of judges, instances 40, 41,

63–4, 81, 143, 178–80, 188–9Roberts, Chief Justice John (US), views

on impartiality 383

role of judges‘citizen judge’ approach 164–9increase

general trend 3and independence 10political motives for 12–13

within legal system 154–7openness as to 162–4

Roman law principle of impartiality,common law compared 346–7

Ruffo, Justice Andree (Canada),freedom of speech controversy183–4, 313

rule of lawand independence 162–4, 428and public confidence 162

salaries and pensions see remunerationSaxmere cases 328–36scandalising the court, abolition of

offence 176–8Scotland

Judicial Appointment Board,establishment 118

removal of judge for inability 87–8secondment of judges 91–2security of tenure 76–8, 80security orders and warrants, issuing as

non-judicial function 416–22,487

Sedley, Sir Stephen (UK), freedom ofspeech controversy 248–9

selection see appointmentsself-disqualification see recusalsensitivity training, use of 47separation of powers

constitutional issues 404–5and independence 9–10, 159–61and non-judicial functions 404–5,

429–30, 479–80short-term political aims and

appointments 138–9Siemer, Vincent (NZ), attacks on

judges 208–9skills of judges as rationale for non-

judicial functions 438solicitors, disqualification for relations

with 373–4, 376–7

560 index






South Africaapartheid regime 476–7

appointments 97–8contempt of court 222–7discipline 98–9freedom of speech 218–27independence, tensions during 99non-judicial functions 475–8removal 99

appointmentsacting judges 104–6apartheid regime 97–8chapter summary 97colonial regime 97–8Constitutional Court 102current regime 101–6effectiveness of system 113–16ethnic communities 104main issues 96–7social representativeness 104women 104

bias see also recusal belowabsolute neutrality as realistic

objective 351–2chapter summary 347main issues 346–7presumption of impartiality 352reasonable apprehension test see

reasonable apprehension testbelow

Cameron, Justice Edwin, freedom ofspeech controversy 235–6

conduct, Code of Judicial Conduct235, 489–92

Constitutional Courtappointment to 102duty to sit 352–3establishment 96freedom of speech issues 227–31

contempt of courtapartheid regime 222–7current regime 227–33

disciplineapartheid regime 98–9chapter summary 97current regime 106effectiveness of system 113–16main issues 96–7

disqualified judge, automaticdisqualification 349

diversity 104duty to sit 352–3ethnic representation 104freedom of speech

apartheid regime 218–27Code of Judicial Conduct 235current regime 227–36judges’ speeches 233–6main issues 217–18

Hlophe, Judge John, inquiry intoconduct 108–11

impartiality, constitutionalprovision 346–7

independenceBoer republics 97tensions during apartheid

regime 99transition to current regime

99–101investigative inquiries, non-judicial

functions 476–7Judicial Service Commission

appointments 101–6Code of Judicial Conduct 489–92discipline 106effectiveness 113–16establishment 99–101service on 487

magistrates, non-judicial functions488–9

Niekerk, Barend van, freedom ofspeech controversy 222–7

non-judicial functionsacceptable activities 487administrative tasks 487apartheid regime 475–8caution against 477–8chapter summary 475current activities 487–9current regime 478–86Heath case 479–80incompatibility criteria 482incompatibility test 480–6Judicial Services Commission

Amendment Act provisions489–92

index 561






South Africa (cont.)magistrates 488–9main issues 474–5prohibition of payment for

112–13reasons for use of judges 476reform of rules as to 486–7, 489–92separation of powers 479–80

reasonable apprehension testchoice of test 350–1considerations 351decision to use 350determination on facts 353double reasonableness

requirement 354establishment 349–50legal consensus as to 349

recusal 348appeals against refusal of

application 359–60application 358–9chapter summary 347colleagues on same bench 354conduct 355–7and duty to sit 352–3failure to recuse, effect of unlawful

359general approach 347–54no call for 357–8prior political associations 355procedures 357–60race issues 354–5special circumstances 354–5summary of issues 360

removalapartheid regime 99chapter summary 97current regime 106effectiveness of system 113–16main issues 96–7

separation of powers 479–80Truth and Reconciliation

Commission, legal institutionalhearing 218–22

warrants for search and seizure,issuing of as non-judicialfunction 487

women judges, appointment 104

special prosecutors, extra-judicialservice as 434–6

speeches by judges see freedom ofspeech

state judges see provincial/state judgesstatutory abolition/restructuring of

courts 92–3substantive independence, meaning

15–16Supreme Court

appointment to 57–8Commission 120–1diversity 125–6establishment 117–18, 455–6

surveillance devices, issuing ofwarrants authorising use asnon-judicial function 417–18

suspension of judges 44–5

teaching and writing by judges 471,519–23

telecommunications, issuing ofinterception warrants as non-judicial function 416–17

temporary judges, appointment 32–5,89–90, 91

Thomson, Sheriff Peter (UK), removal237–9

training, sensitivity 47transparency see accountabilitytribunal judges, independence

18–19, 22tribunals

characteristics 472service on 437–8, 472–3system 456

Truth and Reconciliation Commission(South Africa), legalinstitutional hearing 218–22

truth argument for freedom of speech210–11

UNIDROITprinciples of justice system 13–15standards of judicial independence

22–3United Kingdom (UK) see also

Scotland see Northern Ireland

562 index






appointmentsAppointments Ombudsman 131background to reform 118–20devolution 118–19diversity 8, 119–20, 121–2, 125–6Lord Chancellor’s powers 121Lord Chief Justice’s powers

117–18magistrates 120parliamentary scrutiny 122–3political issues 119Prime Minister’s power 121–2to public inquiries 503reform 117–18, 121–2summary of issues 132–3Supreme Court see Supreme

Court belowappointments commissions

establishment 118–19membership of England and

Wales Commission 123–4overview 120–3record to date 124–6

arbitrators, removal for bias 340–1and Article 6 ECHR 6, 8, 10–11, 366automatic disqualification for

pecuniary interests 294availability of judges, effect of service

on public inquiries 504Barrington, Sir Jonah, removal 84,

127bias see also disqualified judge below

anti-bias rule, characteristics361–8

appearance of, and anti-bias rule362–8

arbitrators, removal for 340–1automatic disqualification 370–1chapter summary 361–2criminal appeals 326jurors, removal for 340–1necessity exception to anti-bias

rule 342summary of issues 377–8test see bias test below

bias testand Article 6 ECHR 366choice of test 324–6, 350–1, 369–70

jurors 374lay observer see lay observer belownature of 362use of 348, 369–70, 371–4

Bingham, Lord, freedom of speechcontroversy 249–50

complaints handling 129–32, 377conduct

Guide to Judicial Conduct 242–4rules 82–5

constitutional reform, reform ofjudges’ role 117–18, 493

criticism of judges, summary ofissues 255–6

devolution and appointments118–19

discipline‘misbehaviour’ 82–5Ombudsman 131procedures 126–7

disqualified judgeapprehension of bias 348attitudinal bias 371–2automatic disqualification 370–1chapter summary 361–2Court of Appeal guidance 372–3failure to disclose interests, effect

359, 370–1group memberships 373nemo judex in re sua principle 361pecuniary interests 294, 370–1prior decision-making as basis

341–2recusal 375–7relations with parties 371–2relations with solicitors 373–4,

376–7relations with witnesses 373waiver of right to object to 374–5

diversity 8, 119–20, 121–2, 125–6duty to give reasons for decisions 8freedom of speech

challenging government 244–7conflict between impartiality and

independence 239–42controversy over 237–9, 247–50government criticism of judges

253–5

index 563






United Kingdom (UK) (cont.)impartiality as boundary 250–2and independence 253–5individualist arguments for 212justice argument for 211–12rules 242–4

governmentcriticism by judges 244–9criticism of judges 253–5

Hope, Lord, freedom of speechcontroversy 247–8

Human Rights Act 1998, judge’scriticism of 250–2

Hutton, Lord, Dr David Kellyinquiry 507–10

immunity of judges, service onpublic inquiries 504

impartiality of judgesas boundary to freedom of speech

250–2conflict with judges’

independence 239–42independence

conflict with impartiality 239–42and freedom of speech 253–5legislative provision 11–12, 21tribunal judges 19, 22

Judges’ Council, Guide to JudicialConduct 242–4

Judicial Appointments and ConductOmbudsman 131

jurors, removal for bias 340–1Kelly, Dr David, inquiry into death

507–10Kilmuir rules 157–8lay observer

balanced approach 367description 367–8knowledge attributed to 368reasonableness standard 366–7

Lord Chancellorappointments powers 121automatic disqualification for

pecuniary interests 294complaints handling 129–32Concordat with Lord Chief Justice

126–7discipline and removal 126–9

magistrates, appointment of 120reform of role 117–18

Lord Chief Justiceappointment powers 117–18Concordat with Lord Chancellor

126–7discipline 129–30removal 128–9

magistrates, appointment 120McCluskey, Lord, freedom of speech

controversy 250–2Mill, John Stuart, views on freedom

of speech 210–11non-judicial functions see public

inquiries, service on belowOffice of Judicial Complaints

scrutiny of 131work 130–1, 377


pecuniary interests, automaticdisqualification for 294, 370–1

Pickles, Judge James, threateneddismissal 128

Prime Minister’s power to appoint121–2

protection from politicalinterference

effect of service on publicinquiries 504–10

public inquiries, service onappointments, impact on 503appropriateness 499–502availability of judges, impact on

504case study 507–10chapter summary 493–4immunity of judges, impact on

504impact on judges’ independence

502increased use of inquiries 494–5main issues 493–5nature of inquiries 496protection from political

interference, impact on 504–10Salmon principles 497–8statutory inquiries 496–9

564 index






recusal see disqualified judge aboveremoval 128–9

freedom of speech issues 237–9inability, for 85–6, 87–8, 249instances 80–2by Royal Commission 81rules 127–9

resignation of judges, instances 81Royal Commissions 6, 81Salmon principles 497–8Sedley, Sir Stephen, freedom of

speech controversy 248–9Supreme Court

Commission 120–1diversity 125–6establishment 117–18

Thomson, Sheriff Peter, removal237–9

tribunal judges, independence 19, 22Woolf, Lord, freedom of speech

controversy 244–7United Nations (UN) and

independence 105, 166United States (US)

accountability and freedom ofspeech 259–60

administrative judges,independence 19

American Bar Association (ABA)Model Code of Judicial Conduct

266–72, 275, 380–1, 386–90,396

response to political attacks onjudges 275

appeal cases, criticism of judges inpolitically controversial 262

appointments‘depoliticisation’ 273–4election campaigns, high cost of

266federal courts 135–40ideological issues 139–40liberal attacks 265magistrate judges 134–5patronage 139political factors 135–40short-term political aims 138–9social representativeness 139

state courts 143–7trends emerging 149–50

Benjamin, Justice Brent,apprehension of bias 392–6

biasapproach to 382–6chapter summary 380, 381–2disqualification and discipline,

criteria 386–90and election 396impartiality, importance 380–2main issues 379–80in state courts, federal

constitutional protection 390–6Bork, Judge Robert, nomination 140Brennan, Justice William,

nomination 138–9Chase, Justice Samuel, attempted

impeachment 141circuit courts

appointments 136–8system 135

conductAmerican Bar Association

Model Code 266–72, 275,380–1, 386–90, 396

Code of Conduct for United StatesJudges 386–90

impartiality see impartiality belowimpropriety, appearance of

389–90conservative attacks on judges

evangelical conservatives 261‘liberal activism’, campaign

against 263–5court system

common characteristics of federaland state systems 134

federal courts see federal courtsbelow

state courts see state courts belowcriticism of judges

ability to respond, importance 273cyclical nature of 260–2‘depoliticisation’ response 273–4future developments 273–5historical cycles 260judges’ response 266–72, 273–5

index 565






United States (US) (cont.)‘liberal activism’, campaign

against 263–5main issues 257–8overview 258–66political reasons for 260–2progression generally 260summary of issues 275

‘depoliticisation’ of appointments273–4

disciplineCanada contrasted 62effectiveness 142federal courts 140–3standards 386–90state courts 148

disqualification of judgeschapter summary 380, 381–2criteria 386–90

district courtsappointments 136–8system 135

Dworkin, Ronald, views on freedomof speech 212–13

election, bias and 396Embry, Justice Eric, apprehension of

bias 392evangelical conservatives

and criticism of judges 261federal courts

appointments 135–40attacks on appointments 265circuit courts see circuit courts

abovecourt system 134–5discipline 140–3district courts see district courts

aboveremoval 140–3Supreme Court see Supreme

Court belowfreedom of speech see also criticism

of judges abovechapter summary 258constitutional provision 258defamation, judge’s right to sue

258–9and independence 259–60

Madison, James, views of 211Hoar, Judge Ebenezer, nomination

139impartiality

challenges to 388–9idea of judge 383importance 380–2Model Code as to 380–1

impeachment 141–2impropriety, appearance of 389–90independence

administrative independence17–18

administrative judges 19and freedom of speech 259–60public confidence 261–2remuneration 135–6

internet and criticism of judges 262Jackson, Justice Robert,

appointment as NuremburgTrials chief prosecutor 434–5

legal realismand criticism of judges 261–2and election 397influence 383–6


liberal attacks on appointments 265‘litigation explosion’ and criticism of

judges 260–1Madison, James, views on freedom

of speech 211magistrate judges, appointment and

role 134–5national courts see federal courts

abovenon-judicial functions

associational activities 523–6charitable activities 526–8Code of Judicial Conduct 512–13government commissions 513–17public hearings 517–19separation of powers 410summary of issues 528–9teaching and writing 519–23

Parker, Judge John J., nomination140

President’s power to appoint 135–40

566 index






removalfederal courts 140–3impeachment 141–2inability, for 85state courts 147–8

resignation of judges 143Roberts, Chief Justice John, views on

impartiality 383separation of powers 9–10, 410state courts

appointments 143–7attacks on appointments 265–6bias in, federal constitutional

protection 390–6court system 143discipline 148election campaigns, high cost of

266removal 147–8

Supreme Courtappointments, political factors

138–40

composition 20, 135jurisdiction 135

values see core values of judicial systemVasta, Justice Angelo (Australia),

removal 39–40Venezuela, provincial judges, power to

appoint 49

waiver doctrine, reasonable suspicionof bias test 295–9

warrants and orders , issuing asnon-judicial function 416–22,487

Wilson, Justice Bill (NZ), apprehensionof bias, Saxmere cases 328–36

witnesses, disqualification for relationswith 373

women judges, appointment 32, 71,104

Woolf, Lord (UK), freedom of speechcontroversy 244–7

index 567




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