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Jun 10, 2009

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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.

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.

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.

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