Judicial Bias

Judges are required to be neutral, impartial, and free of influences that would tend to make it difficult for them to decide cases on their merits. At the same time, American judges do not form a distinct profession, trained and socialized apart from lawyers, as is true in most civil-law systems. When a lawyer becomes a judge, we expect him or her to draw to some extent from his or her personal and professional experience before taking to the bench. The reality is that judges have social and professional connections, financial and personal interests, and views on matters of public concern. This reality is in tension with the ideal of neutrality that is central to the judge’s role.

The law regulating judicial bias attempts to sort out ‘‘contaminating’’ influences from those connections and interests that are thought to be relatively innocuous. Most states have adopted some form of the American Bar Association’s Model Code of Judicial Conduct, which specifies circumstances under which a judge ought to recuse himself or herself from participating in a case. In addition, federal and state statutes and court rules create mechanisms for the litigants to challenge the impartiality of a judge.

The most straightforward cases of judicial bias involve financial entanglements and pecuniary interests that might cause the judge to favor one litigant over another in the hope of realizing personal gain. More difficult cases arise from civic and charitable activities, political and personal associations, and family relationships. It is unreasonable to expect judges to isolate themselves from social clubs and friendships, yet these associations may create the appearance of partiality in some cases. Judges are prohibited from belonging to organizations that practice invidious discrimination but may maintain extrajudicial associations as long as they do not cause the judge’s impartiality to be reasonably questioned. For example, in a memorandum in which he decided that he need not recuse himself from deciding a case in which he had gone duck hunting with Vice President Dick Cheney, Justice Scalia cited a long list of incidents in which judges had maintained cordial relationships with political officials who were parties in cases before those judges (Cheney v. U.S. District Court).

Perhaps the most difficult issue of all relates to the tension between the political values of accountability and impartiality. To enhance the accountability of judges to the democratic political process, many states have an elected judiciary, or at least require judges to stand for period retention elections. Although state codes of conduct have attempted to restrict judges from talking about their political views during election campaigns, the Supreme Court has held that some of these restrictions violate the First Amendment (Republican Party of Minnesota v. White). It would appear difficult to reconcile the ideal of judicial neutrality with the expectation of voters that candidates for judicial office have political beliefs that bear on how the candidates might decide cases. The White decision favors transparency over the approach of the state codes, which was to prohibit reference to political beliefs.

W. BRADLEY WENDEL

References and Further Reading

• Shaman, Jeffrey M., Steven Lubet, and James J. Alfini. Judicial Conduct and Ethics. 3rd Ed. Charlottesville, VA: Lexis Law Publishing, 2000.
• Stark, Andrew. Conflict of Interest in American Public Life. Cambridge, MA: Harvard University Press, 2000.
• Wendel, W. Bradley, The Ideology of Judging and the First Amendment in Judicial Election Campaigns, South Texas Law Review 43 (2001): 73–123.

Cases and Statutes Cited

• Cheney v. United States District Court, 541 U.S. 913 (2004)
• Republican Party of Minnesota v. White, 536 U.S. 765 (2002)
• ABA Model Code of Judicial Conduct (2004)

See also Due Process; Impartial Decisionmaker