Saturday, March 7, 2009

Judicial Recusal and Judicial Bias: Saturday Evening Review

As noted previously, on Tuesday SCOTUS heard oral arguments in Caperton v.  A.T. Massey Coal Co., on the question of whether the refusal of Justice Benjamin of the Supreme Court of Appeals of West Virginia to recuse himself from the appeal of a large jury verdict against a party who spent $3 million supporting Benjamin's campaign (more than 60% of the total amount spent) violated the Due Process Clause of the Fourteenth Amendment. 

Post argument, there is  much commentary, including an excellent piece by NPR here, noting that former- Justice O'Connor was in the courtroom, and reminding listeners of the similarity of the plot to John Grisham's novel THE APPEAL (NYT review here).

An especially interesting colloquy occurred early in oral argument with Justice Scalia asking Theodore Olsen, who was arguing that the judicial bias in this case was extreme:

SCALIA:   . . . . I was appointed to the bench by Ronald
Reagan. Should I be any -- should I have been any less
grateful to Ronald Reagan than -- than the judge here
was grateful to the person who spent a lot of money in
his election?

(Transcript at 11).
Olsen replied that

-- there is a significant difference with respect to the
framers of the Constitution who gave the members of this
Court and the Federal Judiciary life tenure for the very
purpose of ensuring the independence of the judiciary.
There is a separate consideration that this Court has
mentioned because of the fact that judges and justices
of this Court cannot be replaced if they feel that they
must recuse themselves. There is -- another interest is
institutionally presidents appointing justices all of
the time for a variety of reasons, but not to attempt to
affect the outcome in their case.

(Transcript at 13).  The framing of the problem as limited to financial contributes attributable to the election of judges is an interesting and obvious one - - - and the NYT editorial here also takes this view. 

Yet the issue of "judicial bias" is not so narrow, as the scholarship of Professor Reg Graycar - - - a shining star of the University of Sydney (Australia) Law Faculty - - - has discussed in several articles covering controversies in many jurisdictions. 

R_graycar_2 Graycar focuses on how persons who have not traditionally been judges are often perceived as biased.  In her newest piece on the subject, Gender, Race, Bias and Perspective: OR, How Otherness Colours Your Judgment, 15 International Journal of the Legal Profession 73 (2008), Graycar analyzes many requests for judges to recuse themselves based upon an argument that they cannot be fair or unbiased because of their gender or race.

In an earlier article, The Gender of Judgments: Some Reflections on Bias, 32 University of British Columbia Law Review 1 (1998), Graycar draws attention to a disturbing accusation of bias:

In 1990 Madame Justice Bertha Wilson, while a member of the Supreme Court of Canada, gave a speech entitled: "Will Women Judges Really Make a Difference?" In the course of her speech, dealing with the notions of bias and neutrality, she stated:

If women lawyers and women judges through their differing perspectives on life can bring a new humanity to bear on the decision-making process, perhaps they will make a difference. Perhaps they will succeed in infusing the law with an understanding of what it means to be fully human.

There was enormous publicity about her speech including a complaint to the Judicial Council and calls for her resignation on the grounds that she was "biased." The argument here seemed to be that by her mere suggestion that women on the bench might make a difference, Justice Wilson was "playing politics and not being impartial."

Id. at 8.  Surely this is not what we can argue is bias?  Or at least sufficient bias to constitute a denial of due process? 

Nevertheless, if we take Graycar's arguments seriously that allegations of bias will themselves be biased - - - as I think we must - - - then where does that leave us with Justice Benjamin's bias based on taking three million dollars for his election campaign from a man whose case he would rule upon? 

Or perhaps some of the difficulty is perceiving Benjamin as biased when his race and gender raise the presumption that he is neutral? 

RR


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