Judges Confronting Their Own Bias A Necessary Exercise?

Biased thinking can lead not only to minor mistakes but can precipitate major disasters. This is so whether the bias is conscious- apparent to the actor upon self-reflection (explicit) or unconscious – hidden from the actor’s reflective thought processes (implicit).

A recent edition of the New Scientist magazine (Aug 15) explains that the explosion in 2010 of BP’s Deepwater Horizon oil drilling rig could have been prevented but for the existence of a distinct “confirmation bias” amongst rig workers. When a test on a critical seal showed a failure, this was explained away as something innocuous by the workers rather than facing the evidence indicating that something was seriously amiss.

Allegations of bias arise in all sorts of contexts and sometimes have to be resolved by a formal inquiry. Where requests are made for judges, arbitrators and judicial commissioners to disqualify themselves because of alleged bias, the aggrieved party will seek to establish demonstrable manifestations of such bias.  In other words it is conscious bias that is decisive in a recusal application. Unconscious bias rarely, if ever, features in these enquiries and short of requiring the judicial officer to take an unconscious bias test, the operation of implicit biases while often plausible, remains outside the scope of the argument.

Recently Royal Commissioner Hayden was requested by certain unions to stand down. The commission was established to enquire into possible breaches of governance standards, malfeasance and criminality on the part of elements within the trade union movements. While sitting, the Commissioner had accepted and later declined an invitation to give an address on a legal topic at an event sponsored by the Liberal party. The initial acceptance, the unions argued,could be viewed as sympathy for the Liberal side of the political spectrum.

The legal question which the Commissioner had to decide was not whether he had been shown to be biased but whether a fair-minded lay observer might reasonably apprehend that the Commissioner would not bring an impartial mind to bear to the issues at hand. So the Commissioner is required to put himself in the position of an independent third party viewing the potential for bias. Applying this test, the Commissioner refused to disqualify himself, holding that a fair-minded observer would not apprehend any bias on his part.

In truth, unless one is alive to the hazards of the application of heuristics (mental short-cuts) any enquiry as to bias in judicial or quasi-judicial proceedings is itself potentially subject to unconscious bias. This is so because, as the highest UK court observed:

“The fair-minded and informed observer is him or herself in large measure a construct of the court”.

Since different judges have in the past created different constructs of the ideal fair-minded observer one can conclude that this imagined paragon of objectivity and fair-mindedness could easily be a product of the judge’s own biases. In other words, the judge is more likely than not to think that the fair-minded observer “thinks as I do”. This is a manifestation of a classic and well-documented bias known as the “false consensus bias” which involves an assumption that the thinking of most people or at least most right thinking people is consistent with one’s own.

While lawyers and judges are indeed trained to exclude irrelevant matters from their consideration this is not the same thing as being free from unconscious bias. Extensive research, for example, by Cornell Law School has shown that in the area of race, judges hold the same implicit biases as others.

And as one prominent Australian judge has written “The task of fact finding or fact selection has involved a large amount of intuitive decision without conscious deliberation. It has, no doubt, also been done with some preconceived or unconscious bias, potential distortion and error” (Hon.G.T. Pagone)

In principle, therefore it would be very beneficial and perhaps even imperative, for anyone and particularly those who perform a decision – making role to examine their own biases and take steps to counteract them.

Judges like others who are placed in a position where critical decisions are made need to understand that it is not disparaging of oneself to acknowledge one’s own biases. Recent scientific advances have shown that use of heuristics is a natural part of human cognitive functioning. All of us, judges included make errors in judgement every day because of the design of the machinery of our thinking and therefore need to bring our biases from the unconscious to the conscious level so we are better able to counteract them.

By Errol Price

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