ON BURYING ONE'S HEAD IN THE SAND

Let's start with this question: Who's the ideal, the Platonic model of the judge/justice?


She is clear-eyed, totally free of preconceptions, open to reasoned argument and the law. She's fair, smart, wholly without biases but widely experienced in life and law. She treats everyone with equal dignity and respect from the lowliest beggar to the king to the major corporation to the vicious killer. If she is elected, she does not even know who served on her campaign committee or contributed to her campaign. If she is appointed, she is beholden to nobody because . . . well, because she's not. Her judicial philosphy is neither broad nor cramped. She understands that the judiciary is but one branch of the government but that, like each of the branches, it has powers unique to its function. And she's wholly fearless in her judging concerned neither for her personal welfare nor her future preferment and entirely indifferent to the clamorings of the public.


You want that person to be elected or appointed judge, but you might not want to appear before her. Why? Because as lawyer or litigant, you want to win, and as citizen you want judges who will reach the conclusions you favor. So the ideal judge, the one you want to have making decisions in the abstract, isn't perhaps the one you want making the decision in this or that particular case.


Now let's ask a different question: Who should we allow to make judicial types of decisions in the real world? And when?

Think jurors for a minute. The Ohio Rules of Criminal Procedure (which are pretty much like, though not identical to, the Civil Rules and the Federal Rules and the rules of most states in this regard), list 13 specific reasons why a prospective juror may be challenged for cause:

1. That the juror has been convicted of a crime which by law renders the juror disqualified to serve on a jury.
2. That the juror is a chronic alcoholic, or drug dependent person.
3. That the juror was a member of the grand jury that found the indictment in the case.
4. That the juror served on a petit jury drawn in the same cause against the same defendant, and the petit jury was discharged after hearing the evidence or rendering a verdict on the evidence that was set aside.
5. That the juror served as a juror in a civil case brought against the defendant for the same act.
6. That the juror has an action pending between him or her and the State of Ohio or the defendant.
7. That the juror or the juror’s spouse is a party to another action then pending in any court in which an attorney in the cause then on trial is an attorney, either for or against the juror.
8. That the juror has been subpoenaed in good faith as a witness in the case.
9. That the juror is possessed of a state of mind evincing enmity or bias toward the defendant or the state; but no person summoned as a juror shall be disqualified by reason of a previously formed or expressed opinion with reference to the guilt or innocence of the accused, if the court is satisfied, from the examination of the juror or from other evidence, that the juror will render an impartial verdict according to the law and the evidence submitted to the jury at the trial.
10. That the juror is related by consanguinity or affinity within the fifth degree to the person alleged to be injured or attempted to be injured by the offense charged, or to the person on whose complaint the prosecution was instituted; or to the defendant.
11. That the juror is the person alleged to be injured or attempted to be injured by the offense charged, or the person on whose complaint the prosecution was instituted, or the defendant.
12. That the juror is the employer or employee, or the spouse, parent, son, or daughter of the employer or employee, or the counselor, agent, or attorney, of any person included in division (C)(11) of this rule.
13. That English is not the juror’s native language, and the juror’s knowledge of English is insufficient to permit the juror to understand the facts and the law in the case.

It's not perfect and we can certainly argue about particulars, but it's a fair starting point. The idea is that people who are altogether unreliable or are so enmeshed with things that either the defense or the prosecution would naturally expect them to be unable to lay their biases aside shouldn't be allowed to serve. The individual truth won't matter. My son shouldn't be on the jury when I try the case. He's too tangled up emotionally (for better or worse) with his father and it would just be hard for people to believe he could really be fair to all sides in the case even if he could be.

Now let's talk about judges again, and justices. But we have to start with a fact that has essentially nothing to do with who should be making decisions. Judges and justices have no enforcement power.

Thus, when the Court refused Georgia's attempt to seize Cherokee lands (Wooster v. Georgia), a defiant President Jackson is said (although it's probably apocryphal) to have responded, "John Marshall has made his decision; now let him enforce it." Regardless of whether he said it, Jackson sent in troops to remove the Cherokee demonstrating that he meant it. And after Brown v. Board of Education, the schools in Little Rock, Arkansas got integrated only because President Eisenhower sent in troops to enforce the Court's orders.

Ultimately, the authority of the courts (not just the Supreme Court, all courts) rests on a public perception of integrity.

And so it is that when we speak of who should judge and when, we need to speak of respect for the integrity of the judicial process and the judicial system.

Of course, we know that judges and justices are human. They have biases and points of view. But we want to believe that they don't act on them. They are, we must mostly believe lest the system implode, generally honest, above it all. Justice must not be for sale. When it is, as it was recently in Pennsylvania (see here) or as it was implied in Ohio (see here), and it must not be seen to put its thumb on one side of the scale (see here and here) the system shakes.

It's why the courts are so hard on those who question their integrity. Consider the saga of Geoffrey Feiger (latest installment, with summary, here) or the disciplinary proceedings against Mark Gardner (here). The Gardner ruling is particularly disturbing. He said many intemperate things about the Cuyahoga County Court of Appeals and certainly impugned the integrity of the judges who decided one of his cases. But he was disciplined with the clear statement that it was irrelevant whether his charges of dishonesty, corruption, and bias were true.

[W]e hold that an attorney may be sanctioned for making accusations of judicial impropriety that a reasonable attorney would believe are false.

And so it came to pass that Antonin Scalia went duck hunting with Dick Cheney.

At the same time, Cheney was petitioner before the Supreme Court in an ongoing dispute over whether the government could be forced to reveal information regarding an advisory committee on energy policy that Cheney, as Vice President, headed. ONe of the parties to the case, the Sierra Club, asked that Scalia recuse himself. He declined with a 21 page opinion explaining that recusal would be proper only if reasonable people might think him biased, and while many people did think he would be biased . . . . Well, he never explicitly said that the editorial boards of major newspapers around the country were unreasonable, but that's pretty much what he was saying.

The point, you see, is that if he were to recuse himself when it wasn't absolutely necessary, then justices would be urged to on other occasions when it might not be absolutely necessary. Actually recusing without necessity will lead people to think less of the justice system:

While the political branches can perhaps survive the constant baseless allegations of impropriety that have become the staple of Washington reportage, this Court cannot. The people must have confidence in the integrity of the Justices, and that cannot exist in a system that assumes them to be corruptible by the slightest friendship or favor, and in an atmosphere where the press will be eager to find foot-faults.

And then there was Caperton v. A.T. Massey Coal Co., Inc. The underlying dispute involved allegations of misconduct by Massey Coal. A jury awarded Caperton and others $50 in damages. Massey appealed to the West Virginia Supreme Court. Massey's chairman, Blankenship, spent some $3 million in a successful effort to unseat an incumbent justice of that court and, in his place, elect a different justice (Benjamin). As the Court noted:

To provide some perspective, Blankenship’s $3 million incontributions were more than the total amount spent byall other Benjamin supporters and three times the amount spent by Benjamin’s own committee. Id., at 288a. Caperton contends that Blankenship spent $1 million more than the total amount spent by the campaign committees of both candidates combined.

The West Virginia Court, by a 3-2 vote with Justice Benjamin in the majority, reversed the lower courts and vacated the $50 million judgment. The Supreme Court, in an opinion by Justice Kennedy, said it wasn't fair.

Repeatedly emphasizing that this is an extraordinary case, that the amounts at issue in themselves and as a percentage of spending were "grossly disproportionate," and given the timing were so extraordinary (he does keep saying it) that due process required Benjamin to recuse himself.

Although there is no allegation of a quid pro quo agreement, the fact remainsthat Blankenship’s extraordinary contributions were made at a time when he had a vested stake in the outcome. Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the consent of the other parties—a man chooses the judge in his own cause. And applying this principle to the judicial electionprocess, there was here a serious, objective risk of actual bias that required Justice Benjamin’s recusal.

Only this was, Kennedy says, can the public's belief in the integrity of the system be confirmed.

Except, say the dissenters, this will weaken the public's faith in the integrity of the system. Chief Justice Roberts bookends his opinion for the dissenters with that point:

I, of course, share the majority’s sincere concerns about the need to maintain a fair, independent, and impartial judiciary—and one that appears to be such. But I fear that the Court’s decision will undermine rather than promote these values.
. . .
I am sure there are cases where a “probability of bias”should lead the prudent judge to step aside, but the judge fails to do so. Maybe this is one of them. But I believe that opening the door to recusal claims under theDue Process Clause, for an amorphous “probability ofbias,” will itself bring our judicial system into undeserved disrepute, and diminish the confidence of the American people in the fairness and integrity of their courts.

If the need of the justice system is not merely to avoid partiality, but to avoid the appearance of partiality, then you pretty much have to agree with Kennedy.

Unless . . . unless . . . unless. See, here's the thing. A bunch of rich, successful, professional men who do not believe that they can be bought, cannot imagine that anyone believes other like them can be bought. But if you allow recusal based on the possibility of being bought, then you're acknowledging it could be true. So you turn, at last, to the old duck-hunter himself, Justice Scalia, who's made one up.

What above all else is eroding public confidence in the Nation’s judicial system is the perception that litigation is just a game, that the party with the most resourceful lawyer can play it towin, that our seemingly interminable legal proceedingsare wonderfully self-perpetuating but incapable of deliver-ing real-world justice. The Court’s opinion will reinforcethat perception, adding to the vast arsenal of lawyerly gambits what will come to be known as the Caperton claim.

No doubt the public sneers at lawyering as a game. But I'm pretty sure that what they fear is judging as a profit-making enterprise, justice for sale to the highest bidder.