"A wise Latina woman…"
Red Judge, Blue Judge: Exposing Judicial Irrationality
Guillermo C. Jimenez
New York, NY, June 10, 2009 -- According to the last count posted on Google News, over 5,800 news stories have recently been written about a certain "wise Latina woman" named Sotomayor. Despite this voluminous coverage, however, something important has been missing from the debate surrounding the nomination of Justice Sonia Sotomayor to the U.S. Supreme Court.
As with previous Supreme Court nominations, the media has reminded us that American conservatives are opposed to judges who are "judicial activists," while liberals tend to support President Obama's criterion of judicial "empathy." Despite this conflict, both sides do agree on one key, common principle: the best kind of judge -- the right kind of judge -- is an impartial judge who applies the law in a precise, dispassionate and unbiased fashion.
Unfortunately, this is just bi-partisan hypocrisy. The harsh truth, which our society must finally began to admit, is that such judges don't exist. Modern psychology has taught us that humans are extraordinarily subject to personal bias. Logic and experience tell us that judges are approximately as human as everyone else (true, some of them may seem waxy and lifeless as Madame Tussaud figures, but if you poke a sleepy one you'll see that their judicial reflexes are as lively and automatic as everyone else's). It follows that our judicial population will be just as politically-biased as the general population, ranging in ideological hue from fiery conservative red to liberal cobalt blue.
By convention we refer to law and justice as unified, monolithic concepts. However, in reality law is a motley creation of a highly-diverse group of human beings. Since human beings are normally distributed along a left-to-right ideological spectrum, the same duality inevitably reproduces itself in our law. Our judiciary is composed of red judges and blue judges (and in-between purple judges). According to this view, the red judges are more likely to create red case law while the blue judges will prefer to do the opposite. We also have red legislatures, which write red laws, and blue legislatures, which write blue laws. The red judges are more likely to overrule or challenge a blue law than a red one, while blue judges are likely to do the opposite.
Whom might we first expect to take issue with this theory of ubiquitous judicial bias? Of course: judges. Judge Harry Edwards of the D. C. Circuit expressed a typical judicial view when he lambasted those who "seem determined to characterize judges as knee-jerk ideologues, who act pursuant to a blind adherence to ideological precepts and decide cases wholly without regard to the law." (1) Judge Edwards' over-stated defensiveness is instructive. It will not be easy to get judges to do anything about judicial bias even if it turns out that something should be done – because they won't admit it exists. The ostrich-like refusal of the judiciary to recognize the existence of bias was once again on view in the recently-announced Supreme Court decision of Caperton v. A.T. Massey Coal Co. (although the Supreme Court did remand the case on the basis of judicial bias, the sharp split among the justices signaled their unwillingness to get involved in any but the most egregious and obvious cases of bias, instances bordering on bribery or subornation). (2)
Given their extreme reticence, let us begin by extending an olive branch to the judiciary. Let us accept that Judge Edwards does make a valid point: in all likelihood, the vast majority of court cases are not decided by judicial bias. Judges are undeniably constrained by statutes and precedents, by juries, by the arguments of counsel and by the possibility of appellate review. Even the most biased judge may have little discretion or power to express that bias in a harmful way. Furthermore, we have no evidence that the vast majority of judges do not strive successfully to render impartial decisions regardless of their personal views.
Having made that amicable gesture, let us now take off the gloves with Judge Edwards and his ilk. Judicial bias may not be all-important in most court cases, but it definitely exists, and it is a problem. The presence of judicial bias has now been convincingly established by empirical research from a new legal school which has been dubbed "The New Legal Realism." (3) Using statistical and demographic techniques borrowed from economics and political science, the New Legal Realists have established that there are significant differences between the judicial decisions made by Democratic appointees and Republican appointees. Moreover, it has been shown that such differences are augmented or diminished by panel composition – partisan judges are more likely to express their political bias when sitting with like-minded judges than when they are alone or out-numbered. (4)
The threshold question that we have to ask about all this bias is: so what? By convention we have long assumed that judicial bias is a bad thing. However, if it is an inevitable and universal fact, perhaps we should be less dogmatic. The same modern science that accuses the judges also provides them with this excuse: if all humans are biased, we have no reason to expect any better of our judges. Moreover, it's not clear that there is anything we could do about judicial bias that wouldn't just make things worse. Thus, University of Chicago Law professor Eric Posner, a critic of the New Legal Realism, has argued that judicial bias is probably not harmful in most circumstances. The courtroom is an extension of society. If we live in a red state like Texas or Kansas, we should not be surprised to find that a majority of our judges are conservative. In Massachusetts, the contrary will be the case. But is that not as it should be? How could we "fix" that? (5)
Even if we were determined only to combat the most pernicious and harmful instances of judicial bias, it is not clear how we should go about doing so. We can always provide for more appellate review, but won't that review also be performed by biased judges? And, how will we determine who is biased, and how much? As law professors Joshua Fischman and David Law have pointed out, judicial ideology is frustratingly difficult to measure. For example, a judge may be considered to hold a liberal bias on intellectual property matters while holding a conservative bias on criminal law matters.(6) Is such a judge liberal or conservative? The question is particularly relevant in the case of Justice Sotomayor, who allegedly possesses precisely such a mix of liberal and conservative "streaks."
Arguably, therefore, the New Legal Realists do not yet have much for us in the way of helpful advice. However, this is because their discipline is rudimentary, not because judicial bias is not a problem. If you doubt the power of judicial bias to create social harm, consider the curious case of the Georgia penal system, where court records have established that first-time felons receive sentences which are strangely correlated with the defendant's skin color. Black felons serve longer than white felons for precisely the same crimes. Not only that, but dark-skinned blacks serve longer than medium-skinned blacks, who in turn serve longer than light-skinned blacks, who in turn serve slightly longer than white defendants. In one study, the total average difference in sentence between white convicts and dark-skinned black convicts was 571 days. In another study, it was found that dark-skinned defendants with "Afrocentric" facial features were twice as likely to be sentenced to death in capital cases as defendants who were not similarly categorized. (7)
Sometimes, bias obviously goes too far. If we are killing or imprisoning people on the basis of the lightness or darkness of their complexion, that is too far. Judicial bias and its negative consequences may be difficult to identify, measure or control, but that is no reason not to get started, and no time better than now. The first step to take is to begin to admit that bias exists and is simply part of the system. When conservatives favor "strict interpretation" over "activism," and liberals do the opposite, that is just another way of saying that conservatives prefer conservative judges while liberals prefer liberal judges. It makes perfect sense for liberal politicians and voters to select liberal judges, because conservative politicians and voters do the opposite.
Will a wise Latina woman respond differently to legal cases than a Wonder Bread white boy like Chief Justice Roberts?
Duh! Of course she will. She had better, or President Obama will rue the day he appointed her. For all their notorious ideological rigidity, the Republicans succumbed to their own non-partisan rhetoric when George H.W. Bush appointed David Souter to the Supreme Court. Souter proved so moderate that he was an enormous disappointment to Republicans, to the point that he was routinely reviled as a "traitor" in conservative circles. There is no reason for the Democrats to make the same mistake. I don't think Las Vegas yet offers odds on Supreme Court performance, but I am willing to bet my Blackberry that Justice Sotomayor will become a stalwart member of the Court's liberal wing. So what? That's politics; and that's the law.
What would a wise Latina judge do, given the above-described constraints, if she hoped to someday become a member of the Supreme Court? My advice would be for her to develop a judicial career in which she meticulously avoided any appearance of bias in her legal decisions or official statements (in order to preclude serious Senatorial opposition), while at the same time making subtle public hints sufficient to attract the attention of the President and to reassure him/her that there would be no reason to regret an appointment. I think that's exactly what the wise Latina woman has done.
REFERENCES
[1] Harry T. Edwards, Public Misperceptions Concerning the “Politics” of Judging: Dispelling Some Myths About the D.C. Circuit, 56 U.COLO.L.REV. 619, 625.
[2] Caperton v. A.T. Massey Coal Co., 556 US___ (2009) (Slip Op. 08-22)
[3] Frank B. Cross, Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance, 92 New U L Rev 251 (1997).
[4] Miles, Thomas J. and Sunstein, Cass R., The New Legal Realism. University of Chicago Law Review, Forthcoming ; U of Chicago Law & Economics, Olin Working Paper No. 372; U of Chicago, Public Law Working Paper No. 191. Available at SSRN: http://ssrn.com/abstract=1070283
[5] Posner, Eric A., Does Political Bias in the Judiciary Matter? Implications of Judicial Bias Studies for Legal and Constitutional Reform, http://ssrn.com/abstract=1082055
[6] Fischman, Joshua B. and Law, David S.,What Is Judicial Ideology, and How Should We Measure It? (October 19, 2008). Washington University Journal of Law and Policy, Vol. 29, No. 1, 2008; 3rd Annual Conference on Empirical Legal Studies Papers; San Diego Legal Studies Paper No. 08-47. Available at SSRN: http://ssrn.com/abstract=1121228
[7] Hochschild, Jennifer L., Weaver, Vesla. The Skin Color Paradox and the American Racial Order
Social Forces - Volume 86, Number 2, December 2007, pp. 643-670
Mr. Jimenez - As a practicing civil litigator, I face the issue of judicial or juror predispositions regularly. We all have them. However, in law school, "juror school" and "judge school," people are told they should put them aside - that predispostions, prejudgments and "prejudice" are "bad things" and they should strive to be "fair and impartial" an decide the case "solely on the evidence." As a result, judges (and jurors) are quite reluctant to admit being "prejudice." Indeed, doing so would be professionally incorrect for judges; they are supposed to take the cases assigned to them and preside over them dispassionately unless they have some direct connection which prevents them from doing so - e.g., a relationship with a party. If they simply have a predisposition that may well impact their views of the case (e.g., they are presiding over a motorcycle accident case and they tend to dislike motorcycles and motorcycle riders), they are taught to "put this aside" rather than to admit that they may not be a truly impartial judge for that case.
There are the "political" biases you discuss - e.g., "conservative" or "liberal," "democrat" or "republican," etc. However, I do not think those are the crucial biases to be concerned about. Those are fairly clear. Citizens and lawyers tend to know if a judge is "supposed" to be a "conservative republican" or a "liberal democrat." And as you note, it is not uncommon for judges to make decisions that go quite counter to the expectations which accompany their political label.
I think the bigger concern is the "hidden" bias which, as perhaps with Judge Edwards, many judges may not be able or willing to face, much less admit. It is one thing to know you have a "conservative republican" judge who is "tough on crime." It is another thing if a motorcycle accident victim has a judge with an undisclosed bias against the plaintiff's lifestyle, behavior and case.
While most cases may ultimately be "decided" by juries, even if a case goes to a jury trial (of course most settle), the judge may play a significant role in the outcome of the case nonetheless - from ruling on pretrial motions, to ruling on trial objections, to knowingly or unknowingly expressing reactions to witnesses and evidence. Moreover, trial lawyers have at least some opportunity to question jurors to determine their predispositions - e.g., about motorcycle riders. However, they have no such opportunity with judges.
I think it is most important that judges strive for impartiality and that citizens feel they can get a "fair and impartial" judge for their case. I think that requires giving judges more freedom - and perhaps more training - to recognize and admit when they might not truly be impartial and unbiased, and to be able to "step aside" and recuse themselves in such cases. This is not to say it would be a common occurrence, but merely that it should be an acceptable result when the judge realizes that perhaps he or she does have a predisposition that may impact presiding over a particular matter.
Thanks for raising the issue to a higher level.
Posted by: Mark C. Zebrowski | Jun 10, 2009 at 08:55 AM
Bravo! However anyone describes the phenomenon of "bias," either as 'an inclination of temperament or outlook' (initial soft-sell from Webster's) or "predispositions" as Mr. Zebrowski points out, the bottom line is that everyone acquires enough biases to potentially color every interaction thorughout a lifetime.
The significant question is whether a person can overcome the biases inherent in all of our experiences to interact, react to, judge, find, or decide the appropriate task or problem. The empirical evidence presented in Mr. Jimenez's article appears to starkly answer this question in the negative (which sadly mirror's the public perception by many in our society.)
Clearly, Professor Posner's view of judicial bias being generally a "no-harm-no foul" situation is of little comfort to anyone appearing with a less than appealing position or even worse, less-than appealing finances or finally, a racially or ethnically distinct defendant or claimant.
While my experiences in and out of courtrooms suggest that many judges are or eventually become receptive enough to views or positions contrary to their own perceptions, I'm not sure that a legion of such claims would reassure our society.
More importantly, to suggest that we currently engage in an "eye for an eye" type of pay-back for past selections to the US Supreme Court is a disservice to the distinguished career and resume of Justice Sotomayor.
The best remedy for myopic or constrained views of the world is a robust and healthy debate by an inclusive or empathetic group (after all, isn't one of the reassuring comforts of being tried in a criminal case that the "trying" is by a jury of our peers?)
The suggestion by conservatives that conservatives (and by extension conservative judges) are the only true defenders of our core values in this society is to emphatically point out the true problem of bias.
Posted by: Eduardo A. Gonzalez | Jun 10, 2009 at 10:52 PM
Guillermo answers:
1. Mark Zebrowski comments that judges are often politically-oriented, but he doesn't perceive that to be a big problem. He seems to agree with Posner that there is no obvious "solution" to the existence of judicial bias. He raises the distinction between explicit and implicit bias, and says that if there is a problem, it's probably with implicit (subconscious) bias. E.g., Your judge doesn't like long-haired kids and your client is a long-haired kid. He suggests that education is the place for judges themselves to address the issue of potential implicit bias.
2. Eduardo Gonzalez comments -- Eduardo agrees that the issue is an important one and that there are theoretical impediments to controlling or regulating judicial bias. However, he points out that that is cold comfort if you're sitting in front of a judge who is going to rule against you because of some unfair personal bias (like what if the judge hates Laker fans, huh, Ed? scary). Eduardo also suggests, I think, that it is in fact CORRECT for judges to be empathetic, which I guess is his value judgment as to the minimum qualifications for being a judge ( I don't know if that definition is going to include Scalia, and he's a judge, isn't he?) Ed also suggests that I'm cheapening the value of Sotomayor's nomination by considering it to be just another cynical manoeuvre in the red and blue warfare.
So, here's where this debate has moved my personal thinking:
A. I like Ed's gut reaction that something should be done. It is shocking to the conscience that race and gender have been proven to affect judicial outcomes. In sexual discrimination and harassment cases it makes a difference whether the judge is male or female. In voting rights cases it makes a difference whether the judge is white or black. Is that acceptable? I agree with Ed that it is not and that we are learning in effect that we can detect a certain kind of imperfection in the justice system. That should be the first step in figuring out how to reduce negative impacts.
B. I agree with Mark and Posner that it is not clear that bias, on the whole, is always bad. Some level of judicial diversity must be acceptable, even though that implies unpredictability of outcomes. However, it may be time for the legal profession to launch a discussion as to when we are happy with probabalistic, culturally-diverse legal outcomes, and when in contrast we would prefer absolute uniformity of legal outcomes (capital punishment cases, child custody cases, maybe?).
I think Ed raises another issue that is important though it is easy to miss. Conventionally, we think of the law as a process for finding the "correct" answer. However, modern cognitive research suggests that, for some if not all legal questions, there is no correct answer -- some judges instinctively answer one way, some judges another. For instance, some people are just naturally more punitive than other people, I believe modern science will bear this out. My wife is one of the punitive ones. This suggests that the paradigm of the law court as a truth-finder is false, and that a better paradigm might be the casino, or the boxing ring, or the beauty pageant.
C. I would suggest this whole issue suggests that there is a gap in American basic legal education in that it it is too vocationally-oriented, so we don't get exposure to these kinds of concepts from psychology, political science and economics. There should be a first-year law course called Legal Theory and Practice that would provide law students with a multi-disciplinary view of law in society. It could include a section on cognitive bias, which would alert all future lawyers, not just judges, to their own capacity for bias. It may also be that lawyers have personal biases which impact the justice system. For example, clients and their litigators could be prone to overconfidence bias, which could aggravate litigiousness.
D. I disagree with Eduardo about the Sotomayor nomination, I think that at the Supreme Court level there is still no clearer way to characterize a judge than as liberal and conservative, and it is normal for Republicans to nominate conservatives and Democrats to nominate liberals. All this talk about judicial activism and strict interpretation is just using code words for liberalism and conservatism. I think it would be refreshing if the Democrats, 59 strong in the Senate, would just have the balls to say, if it turns out she's liberal, we like that, and it will increase our chances of voting for her -- we LIKE liberal, activist judges. On the other hand, I'm afraid that implies that strict interpretation is not wrong when its done by a Republican appointee.
E. Maybe appeals should be easier. It's worth thinking about. Maybe we could have mini-appeals / arbitration appeals / etc., some kind of way of getting around egregious implicit bias by a judge.
Posted by: Guillermo Jimenez | Jun 12, 2009 at 03:58 AM