{"id":512286,"date":"2010-04-04T03:00:00","date_gmt":"2010-04-04T07:00:00","guid":{"rendered":"http:\/\/www.sacbee.com\/2010\/04\/04\/2652419\/why-judges-are-now-defendants.html#mi_rss=Opinion"},"modified":"2010-04-04T03:00:00","modified_gmt":"2010-04-04T07:00:00","slug":"viewpoints-why-judges-are-now-defendants-in-the-court-of-public-opinion","status":"publish","type":"post","link":"https:\/\/mereja.media\/index\/512286","title":{"rendered":"Viewpoints: Why judges are now defendants in the court of public opinion"},"content":{"rendered":"

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Judges have been in the news again, and not always for the right reasons. Concerns about impartiality and judicial conduct have come from both ends of the political spectrum as courts decide questions that ignite political passions. <\/p>\n

These cases, and fights about judicial elections and appointments, shine a spotlight on the way decisions are made, and the backgrounds and biases of those making them. Take a few recent examples: <\/p>\n

• Questions about the integrity and objectivity of Chief U.S. District Judge Vaughan Walker, the federal judge who will decide the case about whether to overturn Proposition 8, following a Washington Post story in February that Walker is gay; <\/p>\n

• The Supreme Court’s 2009 Caperton decision involving a West Virginia appellate court judge’s failure to recuse himself in a case where he cast the deciding vote in favor of a coal company whose CEO had contributed $3 million to that judge’s state Supreme Court election campaign, more than all other donors combined; <\/p>\n

• The firestorm during confirmation hearings last June about Justice Sonia Sotomayor’s comments in a 2001 speech at Berkeley that a “wise Latina with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” <\/p>\n

What should we expect of judges? To represent our views, or to be impartial arbiters of the issues and facts in cases coming before them? Does appointment or election to the bench mean leaving personal, professional, moral or political identity behind? <\/p>\n

Codes of conduct for judges don’t always have the answers. The American Bar Association’s Model Code of Judicial Conduct directs judges to “uphold and promote the independence, integrity and impartiality of the judiciary” and to avoid “impropriety and the appearance of impropriety.” A rule tells judges to perform their duties “without bias or prejudice.”<\/p>\n

But, as Sotomayor said during confirmation hearings, judges aren’t “robots … who don’t have feelings.” Back in that 2001 speech she wondered whether “achieving that goal (of impartiality) is possible in all or even in most cases.” <\/p>\n

So, is it more important that Walker is reportedly gay or that he was appointed by a Republican (the first President Bush)? Should it matter that Sotomayor is female, a Latina, or appointed by a Democrat? If we permit West Virginia Supreme Court Justice Brent Benjamin to accept a huge campaign donation from the CEO of a company appearing before him, should we be surprised if he votes in a particular way? <\/p>\n

Even trying to deal with overt bias or prejudice is complex. California Chief Justice Ronald George formed the 88-member California Commission for Impartial Courts in 2007 following perceived threats to the independence of state judiciaries across the country. The commission’s December 2009 final report contains 71 recommendations to “strengthen our court system, increase public trust and confidence in the judiciary, and ensure judicial impartiality and accountability for the benefit of all Californians.” They deal with conduct by judicial candidates, regulation of judicial election campaign financing, public information and education about the judiciary, and improvements in the methods for selecting and retaining judges. <\/p>\n

So far, only three have been approved by the California Judicial Council. Others – like Recommendation No. 22 prohibiting judicial candidates from seeking or using endorsements from “political organizations” – will spark fierce debate. <\/p>\n

The Supreme Court didn’t provide much guidance about what to do with judicial election financing, even though it held in Caperton that the West Virginia judge was clearly over the line. Justice Anthony Kennedy wrote for the 5-4 majority that “(N)ot every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal, but this is an exceptional case.” He said that a court should look at “the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect” the contribution had on the election’s outcome. <\/p>\n

As long as there is money in the mix, there is the risk donors to judicial campaigns believe they can “pay to play.” Seven of the 71 California commission recommendations grapple with striking the right balance between permitting donations and ensuring against favoritism. <\/p>\n

Dealing with implicit bias is even more problematic. Judges make decisions based not only on reflection and deliberation, but also on quick impressions. Social science research over the last 20 years has tried to gauge how much implicit bias – based on life experience, beliefs and attitudes – influences the ways people think. Having an open and candid discussion about how to deal with bias and judicial ethics – and the 71 California recommendations – is a place to start. <\/p>\n

Strident politics shouldn’t preclude that necessary dialogue. With Supreme Court Justice John Paul Stevens widely rumored to be stepping down soon, we will likely be treated to the spectacle of partisan judicial confirmation proceedings in Washington yet again. Whoever is nominated can expect scrutiny of his or her judgments, speeches, writing – and, like Sotomayor, even shopping habits – for clues about bias or intentions. With any luck we’ll learn more about expectations – for judges and for ourselves – in the process.<\/p>\n","protected":false},"excerpt":{"rendered":"

Judges have been in the news again, and not always for the right reasons. Concerns about impartiality and judicial conduct have come from both ends of the political spectrum as courts decide questions that ignite political passions. These cases, and fights about judicial elections and appointments, shine a spotlight on the way decisions are made, […]<\/p>\n","protected":false},"author":4325,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[7],"tags":[],"class_list":["post-512286","post","type-post","status-publish","format-standard","hentry","category-news"],"_links":{"self":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/512286","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/users\/4325"}],"replies":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/comments?post=512286"}],"version-history":[{"count":0,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/512286\/revisions"}],"wp:attachment":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/media?parent=512286"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/categories?post=512286"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/tags?post=512286"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}