According to last count on Google News, over 23,000 news stories have recently been written about a certain "wise Latina woman" named Sotomayor. Despite this voluminous coverage, however, something crucial 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 (think Texas or Kansas), which write red laws, and blue legislatures, which write blue laws (Massachusetts). 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.
When Sotomayor states that her guiding principle as a judge is the pole-star of "fidelity to the law," she is making a true statement with which both Antonin Scalia and William O. Douglas would doubtless agree. However, it remains nonetheless true that these judges would each disagree about what the "law" is. Scalia looks at law through red-tinted glasses, and it is quietly likely that Sotomayor will view the same cases through blue-tinted ones (though perhaps not as blue as Douglas's).
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 bias in a harmful way. Furthermore, we have little 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 brethren. 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.
It is time for the legal community to respond to the urgent challenge to judicial impartiality placed on the record by the New Legal Realism. Law schools and bar associations are cheating their constituents if they do not engage in vigorous study and analysis of judicial bias. It needs to be better measured, and we need to develop an analytical framework for devising better options to counteract its negative impact. Perhaps, for example, additional forms of speedy judicial review should be open to litigants. At present, appeals are extremely costly and time-consuming, and therefore a powerful ratifier of judicial fallibility.
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 telegraphing 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. Except for a single regrettable reference to wise Latina women, I think that's precisely what the wise Latina judge 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.
[5] Posner, Eric A., Does Political Bias in the Judiciary Matter? Implications of Judicial Bias Studies for Legal and Constitutional Reform.
[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
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