Ideology and Bias

Adam Liptak has a new article out, and it dissects the latest effort in the neverending war by business interests against jurisdictions where plaintiffs can recover damages caused by a commercial enterprise -- or, as they are known in industry circles, "judicial hellholes". (Because we all know that the non-enforcement of arbitration clauses in consumer contracts is the first step towards eternal damnation.)

The interesting part of the article, which consists mostly of giving column space to industry flackery and then politely refusing to mock said flackery, is when Liptak brings up the conundrum of elected justices and the propriety of campaign contributions. Liptak cites a particularly egregious example -- the West Virginia Supreme Court reversing a $50 million dollar judgment against a corporation whose chairman had given almost $3 million to a justice's campaign -- and calls it "striking". One of the reasons I think he doesn't call it "corrupt" or "outrageous" is that nobody has ever really resolved where the line marking improper bias lies, and the addition of privately funded elections only further complicates the issue.

Everyone agrees that a judge should not be biased, but there plainly exist multiple distinct judicial philosophies, which often result in very different outcomes for parties. By and large, we consider it appropriate for judges to have a particular ideology (it would, of course, be impossible to not have some sort of judicial philosophy) and when we disagree with the ideology, the acceptable solutions are to overrule, outvote or replace the judge -- not to seek their recusal for bias. Planned Parenthood, for example, does not attempt to have Justice Scalia recused every time they argue before the Supreme Court, even though he is clearly ideologically predisposed to rule against them. Even though the difference can be as simple as "you're losing because I don't like you" versus "you're losing because I follow a ideology that doesn't like you", the former is unacceptable bias, and the latter is okay.

Elections serve to further blur the line between ideology and bias. When a legislative candidate gets elected promising to, say, stop class action lawsuits, we accept that as a debatable point of ideology. When the candidate is elected, and then acts to stop class action lawsuits, we accept that as implementing the policy promised during the election. Shouldn't a judicial election be similar? While a promise to stop class action lawsuits *seems* inappropriate for a judge to make, why else would a state hold elections but to choose judges based on their ideology? And when a judge is elected with the promise to implement that policy, why should this idea of "bias" stop them from doing just that?

To those who are more familiar with the federal model of appointing judges, this all appears unseemly -- judges are making promises when they really should be neutral arbiters of the law. But judges of all political stripes make a whole lot of law, and it is impossible to be neutral, so why not let the people have a say in it? And wouldn't appointed judges essentially have to make promises to the people who appoint them? It doesn't seem so much a matter of judges making promises, but who the judges make promises to.

Furthermore, in the West Virginia case, the injustice would seem to revolve around the campaign contributions by one of the parties, and I think a fair conclusion to draw is that the addition of money pushes judicial ideology into judicial bias. Nobody wants to see even the implication that judicial decisions are for sale. But it seems equally clear that even without any of the money, the conservative justice would have ruled the same way (in favor of the corporate defendant). And it doesn't strike me that the perceived conflict should be any greater than it would be if the legislative candidate had taken money from one of the parties.

When one really examines all of these issues and controversies -- the line between judicial ideology and judicial bias, the supposed conflicts inherent in the election of judges, the influence of campaign money -- one can see that we are just dancing around the truth, that so much of law is political. Perhaps it is time that we learn to deal with this reality.