July 09, 2020 Feature

Partisan Judges

Bias may be inevitable in both fact-finding and determinations of legal consequence and fairness.

by Robert E. Shapiro

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“The virtue of a judge,” said Socrates when on trial for his life, is to determine “whether the things I say are just or not.” What sounds like a commonplace surely is not. In the first instance, we ordinarily think of the role of a judge as a fact finder, figuring out the truth of what happened, which can be hard to know. But Socrates located the judge’s virtue in something even more important. It is one thing to know what took place, quite another to know what’s just or fair under the circumstances. Thus, every judge is confronted with a double problem. First, to learn the truth; then to know what to do about it.

The distinction between mere fact-finding and the broader issue of justice is underscored by our jury trial. The principal, though not exclusive, role of the jury is as fact finder. What happened? Who is telling the truth? Which account of the circumstances is the one preponderantly supported by the evidence? Is guilt proved beyond a reasonable doubt? The judge plays a larger role, which is to ensure that the outcome is fair. The judge serves this purpose throughout, in impaneling the jury, overseeing the trial, ruling on evidentiary objections, instructing the jury on the law, and deciding whether any jury verdict should be left to stand. The goal is not just to ensure that the jury gets the facts right, but to make certain, to the extent possible, that the outcome is a just one, or at least what the law, understood in its broadest terms, requires.

In practice, of course, the roles of judge and jury are often less distinct. We allow jury nullification, for example, and the judge can be fact finder too. But there is no question that to do her job well, the judge must know the procedural and substantive law, as the jury does not and cannot. What the law provides in a given circumstance is not always easy to know either, but learning and experience serve a critical role. A good judge investigates this carefully. A poor judge, not. But there is still more—call it a sense of justice. What’s fair or right under the circumstances? In effect, is the legal system doing right by this particular party? One reason we have a case and controversy requirement is to ensure that our decision-making is this concrete and individual. What’s necessary and proper under these circumstances?

In short, we want our judges to be good students of the law, its procedure, its substance, and its fundamental goals. The whole concept of judging is to consider as even-handedly as possible opposing viewpoints on the controversy and choose which seems right. The adversary system depends on a neutral arbiter to do so. Advocacy involves the advancing of facts by each side in support of one perspective over another. The legal system seeks to decide which of the approaches is the more compelling understanding from the standpoint of precedent, logic, and fairness. The judge is, in the end, the final, or near-final, guarantor of that process.

Illustration by Dave Klug

Illustration by Dave Klug

From this perspective, among others, the idea of a partisan judge is not just a paradox but an oxymoron. One thing we don’t want from a judge is bias or prejudice, unalterable predisposition or predetermined views, conscious or otherwise. Not for nothing did Socrates defend himself before the city of Athens by first delving deeply into those prejudices and biases of his fellow citizens that might unfairly determine his fate. Only if those biases and prejudices are exposed to the light, challenged, and removed can we believe the process is completely fair.

Bias May Be Inevitable

But does the course of justice ever run so smooth? Bias may be inevitable in both fact-finding and determinations of legal consequence and fairness. We often see or hear what we are predisposed to see and hear. In thinking about what’s right, predisposition and prejudice, whether or not invidious, necessarily play an even larger role. Take a rather simple, ancient example. A big boy owns a small coat. A little boy, a big one. On a frosty New England day, the little boy is snug and warm, but the big boy shivers. These are the facts. Should you make them switch coats? If your paramount assumption is the need to address the immediate welfare of both boys, it’s a no-brainer. The little boy suffers nothing in being made to exchange the big coat for the little one, which will still keep him warm, while the big boy is now warm too. But if your predisposition is the need to safeguard private property at all costs, the matter becomes far more complicated.

We handle the role of bias differently for jury and judge. To prevent presupposition and prejudice from affecting the jury, we rely on the judge herself, applying the procedures that the legal system provides to preclude and ferret out the biases of these fact finders. Foreigners, not to mention many Americans, puzzle over how we can let ordinary people, unschooled in the law, make important decisions of guilt or innocence, liability or not. They fail to appreciate how voir dire, the rules of criminal and civil procedure, evidentiary rules, and the procedures of jury deliberation and decision-making represent the distillation of centuries of thinking about what makes for a reliable factual outcome. Juries are not permitted, for example, to hear every scrap of information anyone has to offer, only what experience tells us may be deemed reliable. Hearsay, it’s been concluded, is ordinarily not. Eyewitness testimony, for all its defects, is ordinarily more so.

But what about judges, where the potential impact of bias is even greater? Who or what exists to vet their views? Quis custodiet ipsos custodes? (Who will guard the guardians themselves?) The answer is twofold. First, they are subject to the procedures of the legal system and the law too, which the canons of judicial ethics ordinarily oblige them to follow in place of their personal preferences and which provide for appellate review if they don’t. Second, and more immediately, we encourage and train judges to appreciate the problem of their own tendencies and biases and strive to overcome them. This is well illustrated by a story told about a young Chicago litigator who was schooled by a famous judge. The novice trial lawyer was cross-examining an expert witness at trial who was made to disclose that he had relied on materials the court had previously, by express ruling, eliminated from the range of permissible evidence. The lawyer thereafter moved to exclude the expert on the grounds that it would be impossible for any human to separate in his mind the extent to which his opinion was formed by permissible versus impermissible material. The latter necessarily would corrupt the former. The judge denied the motion, encouraging the lawyer to “think about what I am called upon to do all day.” Judges must keep distinct in their minds which facts and evidence should be allowed to influence the outcome and which not. In the best circumstances, this will extend to their own predispositions too.

But the system is not perfect, of course. No system is. All of us are affected by deep-seated prejudices we are hardly aware of. Today we tend to think of those prejudices—or, in less inflamed speech, presuppositions—in terms of identity. Politicians, the media, and intellectuals alike tend to think that race, religion, national origin, and the like are the root of our most fundamental ideas. Socrates tended to believe that people’s opinions derived more fundamentally from what was commonly said or believed, such as the alleged existence of identity politics itself. Whatever your point of view, judges, in the end, may be just as much at the mercy of their deepest biases as everyone else. And, unlike the jury, which ever operates under the scrutinizing gaze of the judge, the judge must police herself. We rely on some combination of the legal system, good training, and the fair-mindedness of the judge, who must perhaps keep in mind that the hardest thing to do in life is not to fool yourself. But fool ourselves, we, and even judges, often do.

At the deepest level, partisanship in judging, not to mention the prejudices of judges, may present an insoluble problem. But it helps to look for and appoint judges who, if not enjoying the virtue Socrates demands, at least strive to do so. Students of the law, devoted followers of the legal system, skeptics about their own ability to always see clearly and know what’s right. For this reason, it may have been a little jarring to have seen last year the Trump White House celebrating with various GOP senators about the appointment of a 40th “conservative” appeals judge to the federal bench. The reason is that the festivities seemed to emphasize their partisan leanings more than their legal and practical acumen, to celebrate their biases rather than challenge their appropriateness. Should partisanship be so central to choosing a judge?

At the highest level, in the case of Supreme Court appointments, what is meant by choosing a “conservative” or “liberal” justice, and the appropriateness of naming one, is at least intelligible, if not still a little disquieting. The Supreme Court often hears the most challenging and often politically laden issues. Thus, for the last 100 years or more, the various presidential administrations have sought to appoint judges who shared broadly their partisan political opinions. Roosevelt railed against the “old men” who interfered with his programs in the 1930s, seeking to appoint committed New Dealers in their stead. There were those who approved the “judicial activism” of the Warren Court and those who condemned it, wanting rather “strict constructionists,” who were unacceptable to those who endorsed the former. In our own day, the argument between liberals and conservatives continues to rage. Never far beneath the surface is the challenging idea that judges should be chosen for their particular tendencies. A kindred circumstance is that many liberals celebrate Ruth Bader Ginsburg, and conservatives Antonin Scalia, for the outcomes of their decisions, rather than the quality of reasoning in them, which are often never read at all.

What’s lurking behind all this, and how very dangerous a trend this may be, is underscored by a historical curiosity. It is a striking fact that Abraham Lincoln seldom, if ever, praised John Marshall. This is doubly odd. Lincoln never stinted in his praise for the great leaders and politicians who came before him who were, he believed, responsible for creating fundamental principles of government that were unique in the annals of history in delivering democratic government. Washington and Jefferson came in for particular praise, and Henry Clay he eulogized as the “beau ideal” of an American statesman. At the same time, Marshall might have had a claim to be in the first rank, as his contribution to the architecture of our government under our Constitution was unsurpassed. Marbury v. Madison, in particular, confirmed for us the idea that the Supreme Court was the final arbiter among the three otherwise equal branches of “what the law is.” Judicial review has been decisive in how our government has functioned ever since.

What could be responsible for Lincoln’s omission? His silence makes it impossible to know. But consider the events of his own day. Lincoln had the unhappy experience of witnessing the second great exercise of judicial review that the now-celebrated (though then more controversial) decision in Marbury made possible. This was Chief Justice Taney’s decision in Dred Scott v. Sandford, which struck down the Missouri Compromise and shamelessly asserted the vile notion that the “black man hath no rights which a white man was bound to respect.” Taney enunciated principles that Lincoln saw as attacking the very foundations of our nation, threatening the country with the possibility of becoming all slave, rather than continuing it on a course in which slavery faced “ultimate extinction.” Taney spoke the words and made the decision. But, as perhaps Lincoln saw, Dred Scott was an exercise of extreme partisanship, and worse, for which Marshall’s elevation of the role of the Supreme Court provided the vehicle.

The Present Day

These reflections should remind us what ultimately can be at stake, in the most extreme circumstances, at the Supreme Court level. It is to be hoped we have not yet approached the sharp, fundamental divisions and dangers of the 1850s, which were resolved only by civil war. But, turning to more immediate and prosaic concerns, what does it mean for a district court judge to be chosen for “conservative” leanings? The primary activity of a federal district court judge, and even her appellate counterpart, has very little to do on most days with such broader issues as abortion, race, gender equality, or anything resembling our identity politics. A federal district court judge spends most of his time focusing on more immediate, not to say banal, matters. Commercial controversies are rarely fodder for the political wars. Sentencing white-collar criminals, the same. There is not much partisanship that has any role to play in discovery disputes or charges of drug running. Part of the disturbing character of the Trump administration’s approach is that it seems to depreciate this aspect of judging. In this context, to make partisanship the paramount, let alone only, consideration would be foolhardy. The result could well be judges who have all the “right” views on partisan political issues while being otherwise, at the deepest level, incompetent to perform their jobs.

Perhaps the administration meant only so innocent an idea as that new appointees, after meeting all the most vigorous of ordinary judicial standards, should share in conservative political leanings, if that’s what they are, for the few, more political cases. But one wonders why excellence in understanding the law and its procedures, devotion to the fundamentals of our legal system, and the unrelenting questioning of one’s own biases might not be a better guaranty of justice. Because this does not work perfectly? Because political questions, and potentially profound ones, may always be lurking? Should we therefore drop the standard approach altogether?

Equally troublesome has been the response to the administration’s approach. It was immediately said by critics of the Trump administration that “what goes around comes around.” Every president’s tenure is circumscribed, not least by elections and the term limits on tenure. Even the party the president represents cannot be assured of longevity in office. The history of the republic has been one of periodic, if not exactly regular, swings between one party or another, between so-called “liberals” and “conservatives.” Just a recitation of the list of the presidents in the last 50 years—Nixon, Ford, Carter, Reagan, Bush, Clinton, Bush, Obama, Trump—shows the kinds of changes that can occur. So the thinking goes by the anti-Trump party that, when it becomes “our” turn, they will do for “liberals” or “progressives” what President Trump did for his “conservatives,” appointing judges on the same basis but with a different bias.

Perhaps it goes without saying that these judges will first meet high judicial standards and will be liberal-minded. But it should not go without saying, by either the Trump administration or its critics. And it may have gone without saying for too long. What shouldn’t be sauce for the goose doesn’t work for the gander either, and perhaps it’s time to say so distinctly. To choose trial court judges emphasizing primarily their liberal biases makes no more sense than choosing them for conservative ones. To say it again, a partisan judge simply makes no sense. Worse, to give tit for tat seems to legitimize the whole cynical calculus rather than challenging it on principle. Not for nothing has it been said that whoever spends his life fighting monsters risks becoming one. The appointment and confirmation process risks becoming not a calm deliberation on a judge’s legal acumen, and ability to ferret out prejudice, but a kind of prejudice-induced knife fight. In such circumstances, it seems of little moment who started it.

But, the liberals say, aren’t we in danger of being played the sucker? If one side operates on cunning, anyone resting on principle will seemingly be the loser. On a grander scale, this is the secret to the success of the modern cult of selfishness launched by Machiavelli and Hobbes. They encouraged their contemporaries to so worry about being the victim of others’ greed and ambition as to justify taking the initiative to make the other guy the victim first, or at least to worry first and foremost about one’s own self, rather than the common good. In this way, “this above all to thine own self be true” became the watchword of modernity.

But then what is the alternative? We seem now to have lost the thread of a good process. How do we put the genie back inside the bottle? A better approach may be found in considering how Lincoln viewed the problem. Early in his career, Lincoln emphasized the need for an almost religious devotion to the law. In the 1850s, he shifted slightly. Although, again, we don’t know exactly what Lincoln thought of Marshall or the issue of judicial review, he recognized that the Dred Scott decision had fundamentally misapplied the purposes of that law. Americans, he believed, should still adhere firmly to the law and its procedures but needed to be reminded what their own government was all about. This he nicely spelled out for the public during his debates with Douglas during the 1858 senatorial campaign.

His approach proved a failure. Americans were too badly divided on the question of slavery for a law-based, reasoned-out solution to prevail. Lincoln himself later noted: “And the war came.” But even with these most horrible long-term possibilities before us, we should not yet despair. Rather than focus on what came when Lincoln’s long-term hopes failed, we should concentrate on both his commitment to the law and his attempt broadly to persuade on how it should be directed. In choosing judges, not partisanship, but legal excellence should be our first guide. The selection of only the most qualified judges from a legal standpoint will set a standard, and serve as a guide, for better, if not perfect, unprejudiced results in our daily proceedings. And, finally, they might then join us all in a larger intelligent discussion of what view of justice our legal system is meant to and should provide.

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Robert E. Shapiro

The author, an associate editor of Litigation, is with Barack Ferrazzano Kirschbaum & Nagelberg LLP.