The Art of Judging

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The Will of the People:...... 1 How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution Barry E. Friedman Court Funding—The New Normal...... 17 Robert N. Baldwin Financial Influences on the Judiciary...... 33 Honorable Wallace B. Jefferson Financial Influences on the Judiciary...... 67 Steven M. Puiszis How Judges Decide Cases...... 149 Dr. Carol Tavris How Judges Decide Cases...... 169 Corey Rayburn Yung

The Art of Crafting Opinions...... 237 Honorable Richard A. Posner

The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution

Barry E. Friedman

Jacob D. Fuchsberg Professor of Law New York University School of Law

40 Washington Sq South, Rm. 317 New York, NY 10012-1099 (212) 998-6293 (212) 995-4030 [fax] [email protected] Barry E. Friedman is the Jacob D. Fuchsberg Professor of Law at New York University School of Law. He writes, teaches and litigates about constitutional law, and is a foremost authority on the courts and the Constitution. Friedman served as Vice Dean of the NYU law school from 2007-10. In 2011, Friedman won the Podell Distinguished Teaching Award. In addition to his scholarly writing, which is grounded in law, political science and history, Friedman is a frequent author in the mainstream media. His work has appeared in The New York Times, The New Republic, Slate, Politico, The Nation.com, Foreign Affairs, and Balkanization. Friedman is the author of The Will of the People: How Public Opinion Influenced the Supreme Court and Shaped the Meaning of the Constitution. At present he is writing a book on the Fourth Amendment and policing. The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution

Table of Contents I. Introduction...... 5 II. Judicial Review and Democracy...... 6 III. Debating Constitutional Meaning...... 7 IV. Constructing Judicial Power...... 9 V. The Contours of the History...... 10 VI. The Modern Era...... 12 VII. The American People and the Constitution...... 13

The Will of the People: How Public Opinion Has Influenced... ■ Friedman ■ 3

The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution

I. Introduction In the first half of the 1930S, the American people faced two seemingly intractable problems. The first was the Great Depression, the country’s worst-ever economic downturn. Desperate for a leader, if not a savior, the people elected Franklin Roosevelt President and gave him a strong Democratic majority in Con- gress. Following Roosevelt’s inauguration, Congress began adopting New Deal measures with alacrity; the pace of legislation was simply breathtaking. Many today dispute how effective these measures ultimately were, but at the time, Roosevelt’s program offered something people sorely needed: hope. The second problem was the Supreme Court. In case after stunning case the justices struck down New Deal legislation, ruling that it violated the Constitution. To Roosevelt and the millions who supported him, the Supreme Court’s persistent veto was an unfathomable breach of the democratic principle: that the will of the people should govern. In the winter of 1937, Roosevelt struck back at the Court. Fresh from a land- slide victory that The New York Times dubbed “a political Johnstown flood,” Roosevelt determined that the justices would no longer stand in the way of his popular agenda. I He asked Congress to give him the power to add an additional appointee to the Court for every justice over the age of seventy who refused to retire. Should the elderly and recalcitrant justices not yield, Roosevelt planned to “pack” the Court with as many as six new members of his choosing. For five anxious months, the question of whether or not Congress should approve Roosevelt’s dramatic plan gripped the country. In the very thick of it Newsweek reported that “state legislators, public officials, editors, and millions of plain John Does had joined in a furious debate.” Gallup polling, still in a relatively primitive state, showed voters shifting to and fro in response to the latest development. “Street-corner discussions, arguments at restaurant tables, a seemingly endless stream of radio addresses and newspaper reports, protracted hearings before the Senate Judiciary Committee and animated congressional debates” convinced Merlo Pusey, a prominent historian and editorialist who chronicled the fight and went on to write the Chief Justice’s biography, that “our national conscience has been deeply stirred.” How Congress voted on Roosevelt’s plan would say much about the future of the Supreme Court. But it would say far more about the American people and the sort of government they preferred. To hear it told, they faced a stark choice: either demand the triumph of the popular will and approve FDR’s proposal to sub- jugate the Court, or insist that even a democratic government must operate within the limits of the Constitu- tion and reject the plan. As it happened, the country and the Court found a way out of the seeming dilemma, a solution that has influenced the nature of American government ever since. Congress rejected Roosevelt’s plan. But it did so only after the Court signaled its capitulation and began to approve New Deal measures, at which point public opinion turned squarely against the plan. In effect, a tacit deal was reached: the American people would grant the justices their power, so long as the Supreme Court’s interpretation of the Constitution did not stray too far from what a majority of the people believed it should be. For the most part, this deal has stuck. Roosevelt’s attack on the Court was brazen, but it was only one of many that have occurred throughout the nation’s life. What follows is the chronicle of the relationship between the popular will and the Supreme Court as it unfolded over two hundred-plus years of American history. It reveals how the Supreme

The Will of the People: How Public Opinion Has Influenced... ■ Friedman ■ 5 Court went from being an institution intended to check the popular will to one that frequently confirms it. And it explains that this occurred as the American people gradually came to understand and then to shape the role played by the justices, thus defining the terms of their own constitutional democracy.

II. Judicial Review and Democracy The specific target of Roosevelt’s ire was the power of judicial review, the practice by which courts, and particularly the Supreme Court, determine whether government actions are consistent with the Consti- tution. In American life, the Constitution reigns supreme. Exercising judicial review, courts have the power to strike down even congressional statutes and acts of the President when they are found out of keeping with constitutional standards. Throughout history, the chief complaint against judicial review has been that it interferes with the right of the people to govern themselves. After the Supreme Court struck down yet another New Deal measure in 1936, the New York Daily News, the country’s first tabloid, with a circulation at the time of well over one million, thundered: “We do not see how old judicial gentlemen...can forever be permitted to over- ride the will of the people as expressed through the people’s own elected Legislatures, Congress and Presi- dent.” A union official, expressing support for Roosevelt’s plan, explained the problem: “Unless all branches of our national government are made responsive to changing conditions and thereby truly democratic, popular elections are turned into a farce. The judiciary is no exception.” The President, the members of Congress, and the states’ chief executives and legislators all are accountable to the people through regular elections. Not so the justices of the Supreme Court, who are appointed (not elected) and who-short of removal by impeachment, which has never happened-serve for life. Yet when the justices base a ruling on the Constitution, the country must live with that decision unless and until the Court reverses itself or the rare constitutional amendment is adopted. There is no overriding the Court otherwise. This extraordinary power was a rather uniquely American innovation, emerging without plan or design in the period prior to the Constitutional Convention as a means of checking the excesses of democracy. In the years following independence, increasing numbers of Americans watched with apprehension as legislative assemblies trampled fundamental rights. Gradually, almost imperceptibly, judges answered the call of lawyers to refuse to enforce such laws on the ground that they were “repugnant to” the state constitutions. Then the framers of the United States Constitution adopted the innovation of judicial review to solve a problem of their own: how to ensure that the state governments followed national authority. James Madison, one of our most revered founders, suggested that Congress have a veto over every state law, but few of his colleagues were willing to go that far. Instead, they left it to the judges to decide if particular state laws (and perhaps federal laws as well) conflicted with national authority, and in particular with the Constitution. Although few in the early days of American democracy recognized the full potential of judicial review, some who did were alarmed. As the struggle over ratification of the Constitution entered its most heated days, the Anti-Federalist (i.e. anti-ratification) pamphleteer “Brutus” weighed in, expressing grave concern about the proposed federal judiciary. He thought it almost unimaginable to give judges the power “to decide upon the meaning of the constitution.” Brutus pointed to Great Britain, where “I believe [the judges] in no instance assume the authority to set aside an act of parliament under the idea that it is inconsistent with their constitution.” Brutus reminded his readers that the judges possessing this extraordinary authority “cannot be removed from office or suffer a diminution of their salaries.” “The supreme court under this constitution,” Brutus predicted-some would say quite accurately-”would be exalted above all other power in the government, and subject to no control.” No fewer than four times he intoned: “[T]here is no power above them.”

6 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 When Roosevelt defended his Court-packing plan, he joined hands across the ages with Brutus in condemning the Supreme Court’s unaccountability to the popular will. Devoting one of his legendary fireside chats to the plan, Roosevelt described American government as a “three horse team provided by the Consti- tution to the American people so that their field might be plowed...Two of the horses [the Congress and the executive] are pulling in unison today; the third is not.” Roosevelt stressed that this was not as it should be: “It is the American people themselves who are in the driver’s seat. It is the American people themselves who want the furrow plowed. It is the American people themselves who expect the third horse to pull in unison with the other two.” Many at the time were of like mind. These sorts of challenges to the Supreme Court’s power should sound extremely familiar. Through- out the course of American history, many of the United States’ most revered public figures have expressed similar sentiments. Like Roosevelt and his followers in the 1930s, Thomas Jefferson, Abraham Lincoln, and Theodore Roosevelt before them all struggled with the judiciary, and all said essentially the same. Jefferson, who fought history’s first great battle against the Court, complained that “our judges are effectually independent of the nation.” In its notorious 1857 decision, in Dred Scott v. Sandford, the Supreme Court denied Con- gress had the constitutional authority to resolve the question of slavery in the territories. Lincoln responded: “[I]f the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by the decisions of the Supreme Court...the people will have ceased, to be their own rulers.” In his 1912 third- party bid for the presidency, Theodore Roosevelt concurred: “The American people and not the courts are to determine their own fundamental policies.” The current mantra against “activist judges” is simply the latest incarnation of this persistent complaint about judicial accountability. If anything is new today, it is only that, for the first time in American history, the Supreme Court’s power of judicial review has come under siege simultaneously from both sides of the ideological spectrum. Modern-era critics on both the political left and the right paint a picture in which Brutus’s worst nightmare has come true in spades. The problem is no longer judicial review, they say; it is “judicial supremacy” - on issue after issue of grave public concern the justices insist on having the last word, if not the only one. Critics who agree on little else now unite in decrying the Court’s all-powerful approach.

III. Debating Constitutional Meaning There is a weighty response to this complaint about judicial hegemony. In the American system of democracy, the popular will nonetheless is subject to those boundaries specified in the Constitution. What is the point of having a written Constitution if government officials can transgress it at will? When the justices strike down laws, they are quick to offer reassurance that they are not imposing their own will on the American people; rather, they simply act in the name of the Constitution. “There should be no misunderstanding as to the function of this court,” urged Justice Owen Roberts, one of the men in the middle on a divided Supreme Court during the New Deal struggle. “This court neither approves nor condemns any legislative policy. Its delicate and difficult office is to ascertain and declare whether the legislation is in accordance with, or in contravention of, the provisions of the Constitution; and, having done that, its duty ends.” Roberts’s absolution – “the Constitution made us do this” - reverberates throughout history’s most famous decisions, both those reviled and those admired. When the Supreme Court limited Congress’s power over slavery in Dred Scott, it was (naturally) offered as a necessary interpretation of the Constitution. When the Supreme Court struck down school segregation in Brown v. Board of Education, the reason was that the Constitution’s Equal Protection Clause demanded it. When the Court protected the right of Jehovah’s Wit-

The Will of the People: How Public Opinion Has Influenced... ■ Friedman ■ 7 nesses children who refused to salute the flag in public schools because their religion forbade it, the First Amendment to the Constitution was determinative. “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities,” explained the Court majority. Anytime the Supreme Court is under attack, its defenders will quite naturally brandish the Consti- tution, insisting that those who govern must play by its rules. Opponents of the Court plan - and in the 1930s this included many of FDR’s political supporters - argued that threatening the Court effectively threated constitutional government itself. Frank Gannett owned a chain of newspapers in the Northeast; he favored Roos- evelt early on but came to have a change of heart and ultimately led the attack against the Court plan through his National Committee to Uphold Constitutional Government. Gannett and many others saw Roosevelt’s proposal as a giant end run around the Constitution. Gannett penned an open letter to the American people in which he said: “If it is necessary to change the Constitution it should be done in the regular way.” The respected historian James Truslow Adams, one of a flood of notables who took to the radio to debate Roos- evelt’s proposal, worried aloud that “if the Constitution is to be changed by packing the Court, then that same method might some day be used to alter those parts which guarantee us our religious and other liberties.” The great problem, of course, is that when the issue is fraught, the American people typically disagree over what the Constitution means. So do the justices themselves. That is why judicial decisions interpreting the Constitution become so controversial. Roosevelt did not challenge the Supreme Court merely by relying on the election returns (though he surely did allude to the strength of his popular majority). Instead, he argued that the justices’ understanding of the Constitution was wrong. During his fireside chat on his plan to reorganize the judiciary, Roosevelt pointed to vehement dissent within the Court itself over the proper outcome of New Deal cases. “In the face of these dissenting opinions, there is no basis for the claim made by some members of the Court that something in the Constitution has compelled them regretfully to thwart the will of the people.” His plan, Roos- evelt explained, was simply a way “to take an appeal from the Supreme Court to the Constitution itself.” He insisted that if read properly, the Constitution provided ample power to address the problems of the Depres- sion. Roosevelt urged the American people to read the Constitution for themselves: “Like the Bible, it ought to be read again and again.” As often as not, fights over judicial power really are fights over the meaning of the Constitution. This is not to say that judicial power isn’t an issue in and of itself; it is always a fair question in a democracy whether a public official has too much power, or is insufficiently accountable to the people. But judicial power becomes an issue precisely because judges interpret the Constitution and because judicial decisions seem so very final. This has been the case from the start. Brutus did not challenge the authority of the Supreme Court in the abstract. Rather, he opposed adoption of the Constitution because he feared the power of a strong central government. Brutus believed the Court inevitably would side with the national government against the states, and so he fretted over the extent of judicial power. The very same was true of Jefferson, Lincoln, and Theodore Roosevelt: each attacked the Court precisely because he had a very different understanding of the Constitution from the one held by a majority of the justices. Caught up in immediate controversy, Americans can overlook this point. They fail to see that what looks to be a roaring battle over judicial power is simply the latest round in a much broader struggle over the proper interpretation of the Constitution. In a constitutional democracy, majority will regularly is pitted against minority rights. This tension, which is at the heart of constitutional democracy, would exist even if there were no judges. It is the meaning of the Constitution itself that is up for grabs, and judicial power is nothing more than a pawn in that battle.

8 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 In a sense, the history of the relationship between judicial review and the popular will has been one of great continuity. The justices decide cases involving constitutional questions of substantial importance to the American people. Given the seeming finality of judicial decisions, those who disagree with the justices lash out at the Court and the power of judicial review. Those who agree with the justices jump to their defense, waving the Constitution. And a fight over the Constitution becomes one about the judges.

IV. Constructing Judicial Power Although this is a story of continuity, it also is one of fundamental change. The nature and extent of the Supreme Court’s authority have plainly grown over time, in ways that are both unmistakable and unde- niable. The power the Court wields is the product of a lengthy evolution in American political thought. In the course of struggling over judicial review as a proxy for their greater constitutional disagreements, the Ameri- can people came to tailor, and then ultimately to accept, the role of the Supreme Court. We have the Court we do because the American people have willed it to be so. History makes clear that the classic complaint about judicial review – that it interferes with the will of the people to govern themselves – is radically overstated. The American people have always had the ability to limit judicial review – or even to eliminate it entirely. The persistent question throughout history has been whether, and to what extent, they should exercise this power. In the course of answering that question, the American people have confronted, and given meaning to, the idea of democratic government under a constitution. During the debate over ratification of the Constitution, Alexander Hamilton, writing as “Publius” in The Federalist Papers, rejected Brutus’s prediction that the judiciary would prove all powerful. Hamil- ton’s “Federalist No. 78” remains today one of history’s great defenses of judicial independence. But the most memorable part of Hamilton’s tract was his point that there was no need to worry about the judges because they had little capacity to threaten democratic principles. Judges, Hamilton explained, lacked both the executive’s control over the “sword” and Congress’s control over the “purse.” Possessing “neither FORCE nor WILL, but merely judgment,” the judiciary “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” For this reason, he assured his readers, the judiciary would be “the least dangerous” of the three branches of government. It turned out that Hamilton was at least as prescient as Brutus about judicial power. It is difficult to appreciate today the devastating nature of some of the early challenges to judicial authority. In the aftermath of the Civil War, Congress had the task of “reconstructing” the southern states as part of restoring the Union. Many at the time believed that given the chance, the Supreme Court would render a decision invalidating continued military rule of the South before Congress could consolidate the gains the Union had achieved on the battlefield. But quite unlike all the hand-wringing we hear today, judicial supremacy did not trouble members of Congress then. Listen to Representative John Bingham of Ohio, a Republican leader of the Congress: If...the court usurps power to decide political questions and def[ies] a free people’s will it will only remain for a people thus insulted and defied to demonstrate that the servant is not above his lord by procuring a further constitutional amendment and ratifying the same, which will defy judicial usurpation by annihilating the usurpers in the abolition of the tribunal itself. As it turned out, Bingham’s colleagues did not have to go nearly so far as “annihilating” the Supreme Court to ensure they controlled it. Rather, Congress simply withdrew the Court’s jurisdiction at a critical moment, and the justices bowed to a greater power. So much for Brutus’s worries.

The Will of the People: How Public Opinion Has Influenced... ■ Friedman ■ 9 The irony of the defeat of Roosevelt’s Court-packing plan is that the very weapon denied him in his struggle against judicial authority was used freely by Abraham Lincoln’s generation. Lincoln and his fellow Republicans swept into power as the Civil War began. The Dred Scott decision having made the potential dangers of judicial review perfectly clear, the newly Republican Congress was hardly going to stand pat and allow the justices to threaten its efforts to hold the Union together. Three times during the Civil War and its aftermath, Congress altered the number of justices who sat on the Supreme Court. In each instance, proponents of enlarging or reducing the number of justices offered a reason that had nothing to do with ensuring political control of the Court, just as Roosevelt wrapped his own plan in the flimsy gauze of an argument that the elderly justices were behind in their work and needed help. But those watching were perfectly aware that by altering the number of justices, Congress ensured that the Court majority rested in hands that could be trusted. Roosevelt failed where the Civil War Congress succeeded in part because Americans’ understanding of the Supreme Court and its role had changed between 1868 and 1937. This was not history’s first change of attitude toward judicial review. When the Supreme Court decided the Dred Scott case, holding that Congress could not regulate slavery in the territories, many of Lincoln’s generation feared the decision would ultimately tear the country asunder. Yet very few of them said that Dred Scott should simply be ignored or defied. This may not be surprising to us today, when talk of defying the Supreme Court is taboo, a signal that one is unwilling to play by the basic rules of American governance. It was apparently unsurprising to many Ameri- cans in 1857 as well. Nonetheless, a generation or two earlier, defiance of the Supreme Court by state governments was the order of the day. Some prominent works of political science and history have taken into account the relationship between the popular will and judicial power, but they fail to capture how that relationship has evolved throughout the course of American history. This is unfortunate, because it is only through observing this evolution that we can begin to really understand the authority the Supreme Court wields today. In 1960, Har- vard political scientist Robert McCloskey published a wonderful, engaging history entitled The American Supreme Court, in which he argued that the justices ignore public opinion at their peril. For this reason, he concluded, the Court “seldom strayed very far from the mainstreams of American life and seldom overesti- mated its own power resources.” Despite its remarkable insight, McCloskey’s justly famous history failed to grapple with just how judicial power had been sculpted by those very instances in which the justices did in fact overestimate their own power. The justices today unequivocally exercise more authority than they did at the founding. But that authority exists as it does today only because through a process of trial and error, step and misstep, the country came to understand what it wanted out of the Supreme Court, as well as what it would tolerate.

V. The Contours of the History There have been four critical periods in the American people’s changing relationship with judicial review and the Supreme Court. The lines between the periods are hardly distinct. History resists easy categorization; major developments come in fits and starts. Still, attention to these periods allows us to see how American thought about the role of judicial power has evolved over time. The first period – from the time of independence until the early 1800s – saw the remarkably quick acceptance of judicial review, followed by grave threats to the independence of the judiciary as the implications of the practice became evident. It was in this period that judges began to strike state legislative measures and the Constitutional Convention in Philadelphia adopted judicial review as a means of keeping the states in line with national authority. Soon enough, though, the country saw the danger of unaccountable

10 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 judges with the power to interpret the Constitution. In the late eighteenth century, the country split into two political parties, which had great enmity for each other. Following the “Revolution of 1800,” in which Thomas Jefferson’s Republicans captured the executive branch and the Congress, the Federalist Party tried to fight a rearguard action from the judiciary. The newly empowered Republicans were not prepared to accept such partisan conduct on the bench. Congress abolished some of the judgeships created by the Federalists and threatened the impeachment of Supreme Court justices, acts that were criticized by the Federalists as a grave disregard for the independence of the judiciary. This first period came to a close in the early 1800s only after a tacit deal had been reached by which judicial independence was guaranteed so long as the judges refrained from engaging in blatant partisan politics from the bench. The second period, which ran from roughly the War of 1812 until the Nullification Crisis of 1832- 1833, was characterized by frequent, officially sanctioned defiance of judicial decrees. Most of the Supreme Court’s constitutional decisions in this period were aimed at state governments. Yet in the states’ rights environment in which the Court was operating, the states would regularly fail to show up when haled before the justices and would often defy orders the Court issued. Virginia’s highest court refused to concede that the Supreme Court had the authority to review its decisions. Georgia actually hanged a man in the face of a Supreme Court order to the contrary. This period of defiance came to a gradual close only when the national leaders recognized they needed the Supreme Court to help keep the states in line. President Andrew Jackson had no particular fondness for the Supreme Court, whose rulings often conflicted with his policies. In 1832, however, when South Carolina claimed the power to nullify federal laws and threatened to secede from the Union, Jackson did an abrupt about-face. He in turn threatened to use force against South Carolina and placed the authority of his office squarely behind the Supreme Court as an arbiter of constitutional disputes. The Supreme Court’s reviled decision in Dred Scott ushered in the third period of judicial authority, that of controlling the courts. Though the nation had come gradually to reject official defiance of Court -deci sions, what was to be done if the Court put the country into a seemingly impossible situation, as it seemed to many to have done in Dred Scott? If judicial decisions were going to stick, in ways potentially in conflict with the popular will, then the answer was to exercise control over the courts to make sure the judges handed down only those decisions the people were prepared to accept. It was in this period that John Bing- ham uttered his threat to annihilate the Court, while his colleagues manipulated the size of the Court thrice and stripped it of jurisdiction. The third period continued until 1937. During this time the Supreme Court learned the importance of playing to a constituency, of having a patron that could protect it. Between the end of Reconstruction and the Great Depression, the judiciary grew in power by offering its backing to corporate and commercial interests that exercised enormous authority throughout the country. In the late 1800s, the federal judiciary eliminated state laws that interfered with interstate commerce. In the early 1900s, the courts struck down progressive legislation adopted to ease the plight of workers caught up in America’s industrial revolution. Throughout this long period there were many attempts to control the judges; some were successful, but many failed. Although the reasons why it proved so hard to control the judges in struggle after struggle were complex, the impact of the failure was not. The result was a great loss of faith in the objectivity of the judiciary and of law itself. The Court fight of 1937 served as the threshold to the modern era. Central to the importance of these events was Roosevelt’s success in assembling a coalition of the common people of the country. With Roosevelt’s chief constituency signaling its disapproval of the Court-packing plan, the idea of control gave way to the seeming supremacy for which the Court is noted today. In retrospect, the Supreme Court’s breath-

The Will of the People: How Public Opinion Has Influenced... ■ Friedman ■ 11 taking 1954 decision in Brown v. Board of Education barring segregated public schools was but the opening salvo in what has been sweeping judicial intervention in some of the country’s most controverted issues. Since the 1950S, the Supreme Court has granted women equality, legalized abortion, expanded the rights of criminal defendants, taken control over imposition of the death penalty, recognized gay rights, banned prayer in schools, limited Congress’s power to regulate as it sees fit, and even decided one of history’s closest presidential elections. No wonder that today the Supreme Court is described as practically impregnable. Politicians decry the justices; scholars condemn them. Remedies for judicial power are sought. Yet year after year, the nine members of the Court take their seats on the nation’s highest bench and continue to tell Americans what the Constitution means, seemingly aloof from the controversy that swirls about them.

VI. The Modern Era Still, appearances can be deceiving. In a sense, today’s critics of judicial supremacy are right: the Supreme Court does exercise more power than it once did. In another sense, though, they could not be more wrong. The Court has this power only because, over time, the American people have decided to cede it to the justices. The grant of power is conditional and could be withdrawn at any time. The tools of popular control have not dissipated; they simply have not been needed. The justices recognize the fragility of their position, occasionally they allude to it, and for the most part (though, of course, not entirely) their decisions hew rather closely to the mainstream of popular judgment about the meaning of the Constitution. It is hardly the case that every Supreme Court decision mirrors the popular will-and even less so that it should. Rather, over time, as Americans have the opportunity to think through constitutional issues, Supreme Court decisions tend to converge with the considered judgment of the American people. In rejecting the Court plan, but only after the justices’ turnabout, the American people defined the modern era. They would support the exercise of judicial review so that the Court could do precisely what its New Deal defenders said it would – specify and enforce constitutional liberties – but they would offer this support only so long as the Court’s decisions did not stray far, and for long, from the heart of what the public understood the Constitution to mean. And this, to a remarkable extent, is what has happened. On issue after contentious issue – abortion, affirmative action, gay rights, and the death penalty, to name a few – the Supreme Court has rendered decisions that meet with popular approval and find support in the latest Gallup Poll. In short, the modern era is one of a symbiotic relationship between popular opinion and judicial review. The Court will get ahead of the American people on some issues, like the death penalty or perhaps school desegregation itself. On others, such as gay rights, it will lag behind. But over time, with what is admittedly great public discussion, but little in the way of serious overt attacks on judicial power, the Court and the public will come into basic alliance with each other. In the course of acting thus, the Supreme Court has made itself one of the most popular institutions in American democracy. The justices regularly outpoll the Congress and often even the President in terms of public support or confidence. When the Supreme Court decided the contested presidential election of 2000 in Bush v. Gore, many saw this as a low point for the justices. Yet prior to the decision more than 60 percent of the country said it was the Court’s job to resolve the matter, compared with only 17 percent for Con- gress! And within a year of the decision in Bush v. Gore the Court again was running at high levels of support among Republicans and Democrats alike. These facts profoundly call into question the image of the Supreme Court as an institution that runs contrary to the popular will. In the modern era, the supposed tension between popular opinion and judicial

12 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 review seems to have evaporated. The Court certainly is under persistent attack. Those who lose fights over the meaning of the Constitution are never happy and rarely go down quietly. Still, the more salient Supreme Court decisions generally meet with great public approval. And even when they do not, the public supports the Court’s right to decide the cases nonetheless. The ultimate question, of course, is whether this is a good thing. Though the developments of the last half century may seem to put to rest the tension between judicial review and the popular will that Roos- evelt and many others have felt so acutely, they actually serve only to raise a set of questions that are crucial to a full understanding of American constitutional democracy. The popularity of the Court and its decisions notwithstanding, it remains the case that the Constitution was supposed to be a shoe that pinches. The Con- stitution was intended to serve as a limitation on the popular will, at least at certain times. If judicial decisions are running in popular traces, has the Constitution been abandoned? What does it mean to have a Constitution that is regularly interpreted to mean what the American people want it to mean? Is popularity what we really desire from the justices - and should we? Perhaps most important: What is the capacity of the Court to stand up for the Constitution at times when constitutional values are threatened precisely because they are unpopular with the American people? Is there any hope in the Supreme Court for the protection of constitutional liberty? Although these are the right questions to ask, even tentative answers necessarily await the conclusion of the story. The framers and their successors would have scoffed if they had been told that the judges were to follow the popular will. For generations, the Supreme Court seemed at best a nettlesome thorn in the side of the American people, not their walking companion. Before we even begin to answer these questions, then, it is necessary to understand the events that brought us to the modern state of affairs-and the changes in American thought that went along with them. It is nearly impossible to evaluate the Court’s present symbiotic relationship with the American people without a full picture of how that relationship evolved and how it operates today. The short answer, though, rests in distinguishing the passing fancy of the American people from their considered judgment. Judicial review would indeed be a puzzling addition to the American system of government if all the Supreme Court did was mirror transient public opinion. The value of judicial review in the modern era is that it does something more than that. It serves as a catalyst for the American people to debate as a polity some of the most difficult and fundamental issues that confront them. It forces the Amer- ican people to work to reach answers to these questions, to find solutions – often compromises – that obtain broad and lasting support. And it is only when the people have done so that the Court tends to come into line with public opinion. This, then, is the function of judicial review in the modern era: to serve as a catalyst, to force public debate, and ultimately to ratify the American people’s considered views about the meaning of their Consti- tution. Admittedly, this was hardly the framers’ vision for the Supreme Court, nor is it one that most Amer- icans, scholars of the Court included, believe the Court plays. Yet given that constitutional meaning cannot remain entirely stable over the entire course of American history, and given the incredible difficulty of the constitutional amendment process the framers bequeathed us, this role has proven to be one we could hardly live without.

VII. The American People and the Constitution Typically, histories of the Supreme Court focus on the justices and their decisions. Here, however, the chief protagonists are the American people. This is a chronicle of their shifting attitudes toward the

The Will of the People: How Public Opinion Has Influenced... ■ Friedman ■ 13 Supreme Court, judicial review, and constitutional government. If anything should be evident by the conclusion, it is that the Supreme Court exercises the power it has precisely because that is the will of the people. Claiming to capture the evolving views of the American public is something any author ought to do with enormous trepidation. Public opinion is an enormous force in the United States, as many famous visitors to our shores, such as Alexis de Tocqueville and Lord James Bryce, have noted with wonder. Yet anyone who spends time in this country knows equally well there is no single American voice. Public opinion is a collage of ever-shifting views. For these reasons and more, giving expression to the popular will can indeed seem a daunting task. At the least, history privileges elite voices. The words of members of Congress and Presidents are recorded for posterity. The publishers of journals and authors of books have the means to ensure what they think, and their thoughts remain available to the ages. Not so, necessarily, of the many “John Does” – to use the words of the 1937 Newsweek story about the fight over Roosevelt’s plan – whose views often seem to slip unheard or unheeded beneath the ocean of time. It is a fact worthy of note that the voices of prominent women and people of color are so few in this story, at least until its later years. Indeed, something as seemingly clear as a tally of votes, or a poll, can misrepresent the views of the American people in important ways. African-Americans did not receive the franchise until after the Civil War, and during the following decades it was stripped of many of them once again through the calculated machinations of state officials. The Nineteenth Amendment, giving women the franchise, was not ratified until 1920. Nor are vote tallies necessarily representative of the views of those Americans who can vote. Voter turnout has risen and fallen throughout American history, in ways both provocative and puzzling. During the end of the nineteenth century, upward of 80 percent of the electorate would turn out to vote in some elections; by the 1920S, following all the Progressive Era “reforms,” participation plummeted sharply. Even during times of high turnout, corporate influence and machine politics have played distorting roles. Still, capturing and writing about American public opinion toward the judiciary are not as daunting as they might appear. Despite all these quite reasonable cautions, which many historians face, there is very good reason to have faith in the possibility of chronicling changes in public attitudes toward the idea and the institution that is judicial review. For one thing, controversies in American politics often replicate the adversarial form of the courtroom. By the time matters reach the boiling point, the American people are frequently asked to come down for or against some very basic proposition. At least with the luxury of hindsight, it is possible to see what the issues were and which side prevailed. For another, it is wrong to say the voices of the vast majority of Americans are not preserved to us. Many of the elites whose views are recorded here were chosen or retained their places precisely because of their ability to give voice to the sentiments of their constituents and audiences. That is what long-serving politicians and successful journalists do. Sometimes they mold public opinion; more often they mirror it. In either case, they can be its embodiment. Perhaps most important, in some of the most crucial moments in the struggle over judicial review there was an extraordinary engagement of the American people. That is precisely what Merlo Pusey was capturing when he described “[s]treet-corner discussions, arguments at restaurant tables,” and the like. The Jane and John Does of the era did stand up to be noticed; they wrote letters, held meetings, and organized civic responses in a way that, quite frankly, might seem remarkable today. We do have access to their views. One of the noteworthy aspects of this story is the way in which the role of the judiciary often was defined most by those – the composite groups and individuals – who in fact opposed it.

14 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 This struggle over judicial power has been of the greatest consequence, for through it the American public has come to work out the deepest underlying tension in their form of government, the tension between a democratic government and a Constitution that limits what popular majorities and their elected officials may do. How is it possible to reconcile a belief that the people should at any moment be permitted to find their own way with a set of rules that limits what it is the people can do? Even as some of our greatest thinkers have struggled with the question at a theoretical level, the American people have managed to work it out as a matter of daily practice. This is the story of how they did so.

The Will of the People: How Public Opinion Has Influenced... ■ Friedman ■ 15

Court Funding—The New Normal

Robert N. Baldwin

National Center for State Courts

Williamsburg, VA (757) 259-1880 [email protected] Robert N. Baldwin joined the National Center for State Courts (NCSC) as executive vice president and general counsel in April 2005. In this position, Mr. Bald- win is responsible for coordinating the work of NCSC’s major program divisions: Research/Technology, Court Consulting, International, and the Institute for Court Management, as well as serving as the Center’s in-house legal counsel. Mr. Bald- win retired in 2005, after 30 years as the chief administrative officer for the Virginia court system. Over the years, Mr. Baldwin has served on numerous boards, commissions, and task forces including serving as president of the Conference of State Court Administrators, as a presidential appointee to the board of the State Justice Institute, director and vice chair of the National Center for State Courts Board of Directors and as a board member of the American Judicature Society. He is a fellow of the Virginia Law Foundation. Court Funding—The New Normal

Table of Contents Presentation...... 21

Court Funding—The New Normal ■ Baldwin ■ 19

Presentation

PersPectives on state court LeadershiP

KeePing courts Funded: recommendations on how courts can avoid the budget axe

One in a series from the Executive Session for State Court Leaders in the 21st Century

written by: Greg A. Rowe

Court Funding—The New Normal ■ Baldwin ■ 21 Out-of touch judges; arrogant court administrators; like other taxpayer funded entities, should tighten unhelpful judicial staff. True statements? Not neces- their belts and be even more accountable during this rePort author sarily. A perception among some decision-makers? challenging economic time. True or not, the surface- Absolutely. level appeal of this argument makes the job of avoiding the budget axe challenging. Such perceptions exist at a time when courts are asked to do more and more, such as rehabilitate criminals, There is one further challenge to overcome. A seg- settle complex legal disputes before protracted trials, ment of elected officials have tended to reject some and prevent victims of unscrupulous mortgage com- parts of government, and their goals include reducing panies from losing their homes. As a result of the current economic crisis, virtually every line item in any given state’s budget is at risk for reduction or elimina- to be sure, political and policy tion, and funding for state courts to merely continue decisions that would reduce 1 their present operations is no exception. This is more the role and impact of our than an academic concern; budget cuts will infringe on the very ability of courts to do the work that the nation’s courts are nothing new public expects them to do. and are a part of our nation’s history. To be sure, political and policy decisions that would – either intentionally or unintentionally – reduce the role and impact of our nation’s courts are nothing Greg A. Rowe new and are a part of our nation’s history. In 1809, the scope of those parts of our governmental infra- when the Supreme Court required Pennsylvania to structure—and courts are not immune. In addition Greg Rowe is Chief of the Philadelphia District pay up in a dispute between the Commonwealth and to the technocratic battles about how best and most Attorney’s Office’s Legislation Unit. Previously, a Connecticut sailor, Gideon Olmstead, Pennsylva- efficiently to spend taxpayer dollars, therefore, court Greg oversaw Pennsylvania’s public safety functions nia’s governor, sent the state militia out to prevent its leaders or their representatives may also have to re- with regard to policy and legislation as Governor enforcement.2 In the wake of McCulloch v. Maryland, spond to those who believe government is necessarily Rendell’s Senior Criminal Justice Policy Manager. some states outright defied the Court’s decision that a bad thing. they lacked the constitutional power to tax banks.3 President Lincoln vowed while campaigning for pres- These debates and proposed budgetary cuts are not ident not to give the Dred Scott decision any prec- likely to end soon. The economy is still weak, and edential authority.4 And more recently, in response recovery will be slow. Dollars that states have received to Brown v. Board of Education, Southerners engaged from the American Recovery and Reinvestment Act in “massive resistance,” accusing the Court of acting have generally expired. Further, Congress is reducing unconstitutionally.5 the financial aid it provides to states, which will require states to make even further cuts to their budgets. The majority of today’s serious debates, however, are different. Certainly some who believe in more limited Consider what has happened over the last several government are using the economic crisis to reduce years: the reach of the courts. But generally speaking, the majority of debates today are not explicitly ideo- • In 2011, New York’s judiciary has seen logical attacks on particular decisions, viewpoints, or its $2 billion budget cut by $170 mil- judges. They tend to not challenge the very existence lion after Governor Andrew Cuomo of courts, nor do they seek to ignore judicial deci- lambasted state court leaders for sions. Rather, they are often technocratic, rooted in a proposing budget increases amidst an consideration of how best to spend limited taxpayer economic downturn. These cuts are dollars. The arguments by proponents of cuts have, already having effects, as measures to to varying degrees, a certain appeal and logic: courts, reduce the state’s case backlog have

KeePing courts Funded | 1

22 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 Out-of touch judges; arrogant court administrators; like other taxpayer funded entities, should tighten unhelpful judicial staff. True statements? Not neces- their belts and be even more accountable during this rePort author sarily. A perception among some decision-makers? challenging economic time. True or not, the surface- Absolutely. level appeal of this argument makes the job of avoiding the budget axe challenging. Such perceptions exist at a time when courts are asked to do more and more, such as rehabilitate criminals, There is one further challenge to overcome. A seg- settle complex legal disputes before protracted trials, ment of elected officials have tended to reject some and prevent victims of unscrupulous mortgage com- parts of government, and their goals include reducing panies from losing their homes. As a result of the current economic crisis, virtually every line item in any given state’s budget is at risk for reduction or elimina- to be sure, political and policy tion, and funding for state courts to merely continue decisions that would reduce 1 their present operations is no exception. This is more the role and impact of our than an academic concern; budget cuts will infringe on the very ability of courts to do the work that the nation’s courts are nothing new public expects them to do. and are a part of our nation’s history. To be sure, political and policy decisions that would – either intentionally or unintentionally – reduce the role and impact of our nation’s courts are nothing Greg A. Rowe new and are a part of our nation’s history. In 1809, the scope of those parts of our governmental infra- when the Supreme Court required Pennsylvania to structure—and courts are not immune. In addition Greg Rowe is Chief of the Philadelphia District pay up in a dispute between the Commonwealth and to the technocratic battles about how best and most Attorney’s Office’s Legislation Unit. Previously, a Connecticut sailor, Gideon Olmstead, Pennsylva- efficiently to spend taxpayer dollars, therefore, court Greg oversaw Pennsylvania’s public safety functions nia’s governor, sent the state militia out to prevent its leaders or their representatives may also have to re- with regard to policy and legislation as Governor enforcement.2 In the wake of McCulloch v. Maryland, spond to those who believe government is necessarily Rendell’s Senior Criminal Justice Policy Manager. some states outright defied the Court’s decision that a bad thing. they lacked the constitutional power to tax banks.3 President Lincoln vowed while campaigning for pres- These debates and proposed budgetary cuts are not ident not to give the Dred Scott decision any prec- likely to end soon. The economy is still weak, and edential authority.4 And more recently, in response recovery will be slow. Dollars that states have received to Brown v. Board of Education, Southerners engaged from the American Recovery and Reinvestment Act in “massive resistance,” accusing the Court of acting have generally expired. Further, Congress is reducing unconstitutionally.5 the financial aid it provides to states, which will require states to make even further cuts to their budgets. The majority of today’s serious debates, however, are different. Certainly some who believe in more limited Consider what has happened over the last several government are using the economic crisis to reduce years: the reach of the courts. But generally speaking, the majority of debates today are not explicitly ideo- • In 2011, New York’s judiciary has seen logical attacks on particular decisions, viewpoints, or its $2 billion budget cut by $170 mil- judges. They tend to not challenge the very existence lion after Governor Andrew Cuomo of courts, nor do they seek to ignore judicial deci- lambasted state court leaders for sions. Rather, they are often technocratic, rooted in a proposing budget increases amidst an consideration of how best to spend limited taxpayer economic downturn. These cuts are dollars. The arguments by proponents of cuts have, already having effects, as measures to to varying degrees, a certain appeal and logic: courts, reduce the state’s case backlog have

KeePing courts Funded | 1

Court Funding—The New Normal ■ Baldwin ■ 23 been pared back, small claims and • Florida’s courts have faced sizable justice requested that the governor understand the night court hours have been reduced, cuts over recent years, losing $50 stop appointing new judges for the PoLiticaL cLimate in and hundreds of administrative million in funding between 2007 and next fiscal year, arguing that every employees have been laid off.6 In early 2009. Courthouse closings, layoffs, additional judge would require three Your state 17 2012, a report from the New York and unfilled positions resulted.12 Twice support staff be cut. determine how the judiciaL State Bar Association determined that in 2011, the courts needed emergency branch is viewed in Your state. What virtually all states have in common are sig- “the impact of reductions in fund- loan infusions from the governor in An honest assessment of how the executive and legis- nificant budgetary challenges. In order to avoid lay- ing for New York state courts during order to stay solvent. Many senior lative branches regard the judiciary is necessary before offs, furloughs, salary freezes or cuts, fewer operating the 2011-2012 year has been substan- circuit judges are retiring, which one embarking on a strategy of advocating for funding. courtrooms, and reduced functions, judges and court tially harmful and far-reaching.” The local chief justice blames on growing Additionally, the same assessment should be under- administrators need to engage with members of their sharply reduced budget has decreased caseloads and chronic understaffing. taken with regard to the general public’s perception executive and legislative branches far more proactive- courtroom hours, leading to over- Furthermore, the courts are struggling as well as that of any industries that wield influence ly than they have at any time in the past. Every state crowded dockets, more delays, and with fewer funds from foreclosure in state government. It goes without saying that those is different; the reputations and personalities of their longer trials. Funds continue to be fees, as there have been fewer foreclo- courts that are well-regarded within their own states 13 courts, judges, and administrators are unique. stretched, however, and the courts sures in the past year. are more likely to escape the budget axe. Conducting recognize this; the judiciary’s own some self-assessment may be difficult and, in some In order to advocate for funding during this econom- FY2012-2013 proposal cuts another $19 • In response to the governor’s calls people’s minds, is undignified. But effective advocacy 7 West ic crisis, courts must approach the budgetary process million from the current budget. for cuts in all agencies in 2009, typically requires an understanding of how those who Virginia proactively, effectively, and humbly. Unlike many ’s Supreme Court submitted hold the purse strings feel about you and what they Georgia other entities seeking continued state funding, courts • ’s steep revenue declines re- $2 million in cuts (on a $117 million hear from their constituents with regard to the courts. sulted in a 14 percent cut to the state’s total budget), arguing that although do not typically employ paid lobbyists or have PACs. judiciary budget in FY2010 and a six it was not easy to produce the cuts, As a result, the need to approach the budget process percent cut in FY2011. Many court- they could do so without reducing methodically, comprehensively, and with accurate reaLize that some governors houses have had to shutter operations services. The cuts would instead result data is arguably more important for courts than it is and LegisLators do not on certain weekdays, one circuit from the delayed implementation of a for other entities funded by their state’s budget. consider the courts a coequaL suspended all civil trials indefinitely, case management system.14 In FY2012, third branch. and the state Supreme Court has had however, West Virginia’s judiciary Below is a series of recommendations on how to en- This recommendation may be difficult to adopt be- to rely on unpaid help to complete stood as an outlier and received a $1.7 gage with members of state executive and legislative cause courts are indeed a coequal third branch. Ev- administrative tasks. 8 Tax revenue million budget increase. These funds branches. These are merely recommendations. State erything changes, however, when money is on the increases going into 2012, however, are intended to expand drug treat- court leaders should not necessarily employ each table. Some believe that because courts are funded have made court leaders optimistic ment programs and add designated recommendation or follow these recommendations by taxpayer dollars, court funding must undergo the that some funding will be restored.9 sex offender probation officers.15 precisely as outlined below. The recommendations same level of scrutiny as every other budgetary line would likely need to be adapted to the particular cir- item. Right or wrong, this is the new budget real- • As a result of recent cuts in Maine’s • Despite its embrace of voluntary cumstances of your state. Instead, the recommenda- ity¸ and one which judges and court administrative courts, court security has been cuts in FY2009, the Massachusetts tions are intended to help you develop a framework staff must accept and consider when devising their reduced, stay-away orders delayed, trial courts’ budget was cut again by for your advocacy efforts with members of your ex- outreach strategy. and technology improvement funds $25 million (about 4%) in FY2010, ecutive and legislative branches. slashed—all as the courts continue to resulting in a hiring freeze and a 7.5 taiLor Your message to the see 150,000 new cases on its dockets percent decrease in staff.16 In FY2012, PoLiticaL cLimate oF Your every year.10 In FY2012, the state did the governor approved another $24 in order to advocate communitY. not enact further significant cuts to million in state court cuts, despite No efforts that you undertake to save court budgets the judiciary’s budget, which allowed warnings from the Supreme Court for funding during should operate in a political vacuum. You must tailor many non-judge vacancies to be filled. Chief Justice that services would be this economic crisis, and shape your message based in large part on the po- Maine’s Supreme Court Chief Justice negatively impacted. All told, the cuts courts must approach litical climate of your state. For example, if your state has used the opportunity to call for, from the beginning of FY 2009 to the the budgetary process is focused on reducing prison costs, highlight the role among other things, the consolida- present come to $96 million, and have proactively, effectively, of the courts in diverting offenders from prison; if tion of services and improvements to led to a loss of over 1100 positions. your state faces judicial scandals, demonstrate how technology.11 Upon passage of these cuts, the chief and humbly.

2 | PeRsPectives on stAte couRt LeAdeRshiP seRies KeePing courts Funded | 3

24 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 been pared back, small claims and • Florida’s courts have faced sizable justice requested that the governor understand the night court hours have been reduced, cuts over recent years, losing $50 stop appointing new judges for the PoLiticaL cLimate in and hundreds of administrative million in funding between 2007 and next fiscal year, arguing that every employees have been laid off.6 In early 2009. Courthouse closings, layoffs, additional judge would require three Your state 17 2012, a report from the New York and unfilled positions resulted.12 Twice support staff be cut. determine how the judiciaL State Bar Association determined that in 2011, the courts needed emergency branch is viewed in Your state. What virtually all states have in common are sig- “the impact of reductions in fund- loan infusions from the governor in An honest assessment of how the executive and legis- nificant budgetary challenges. In order to avoid lay- ing for New York state courts during order to stay solvent. Many senior lative branches regard the judiciary is necessary before offs, furloughs, salary freezes or cuts, fewer operating the 2011-2012 year has been substan- circuit judges are retiring, which one embarking on a strategy of advocating for funding. courtrooms, and reduced functions, judges and court tially harmful and far-reaching.” The local chief justice blames on growing Additionally, the same assessment should be under- administrators need to engage with members of their sharply reduced budget has decreased caseloads and chronic understaffing. taken with regard to the general public’s perception executive and legislative branches far more proactive- courtroom hours, leading to over- Furthermore, the courts are struggling as well as that of any industries that wield influence ly than they have at any time in the past. Every state crowded dockets, more delays, and with fewer funds from foreclosure in state government. It goes without saying that those is different; the reputations and personalities of their longer trials. Funds continue to be fees, as there have been fewer foreclo- courts that are well-regarded within their own states 13 courts, judges, and administrators are unique. stretched, however, and the courts sures in the past year. are more likely to escape the budget axe. Conducting recognize this; the judiciary’s own some self-assessment may be difficult and, in some In order to advocate for funding during this econom- FY2012-2013 proposal cuts another $19 • In response to the governor’s calls people’s minds, is undignified. But effective advocacy 7 West ic crisis, courts must approach the budgetary process million from the current budget. for cuts in all agencies in 2009, typically requires an understanding of how those who Virginia proactively, effectively, and humbly. Unlike many ’s Supreme Court submitted hold the purse strings feel about you and what they Georgia other entities seeking continued state funding, courts • ’s steep revenue declines re- $2 million in cuts (on a $117 million hear from their constituents with regard to the courts. sulted in a 14 percent cut to the state’s total budget), arguing that although do not typically employ paid lobbyists or have PACs. judiciary budget in FY2010 and a six it was not easy to produce the cuts, As a result, the need to approach the budget process percent cut in FY2011. Many court- they could do so without reducing methodically, comprehensively, and with accurate reaLize that some governors houses have had to shutter operations services. The cuts would instead result data is arguably more important for courts than it is and LegisLators do not on certain weekdays, one circuit from the delayed implementation of a for other entities funded by their state’s budget. consider the courts a coequaL suspended all civil trials indefinitely, case management system.14 In FY2012, third branch. and the state Supreme Court has had however, West Virginia’s judiciary Below is a series of recommendations on how to en- This recommendation may be difficult to adopt be- to rely on unpaid help to complete stood as an outlier and received a $1.7 gage with members of state executive and legislative cause courts are indeed a coequal third branch. Ev- administrative tasks. 8 Tax revenue million budget increase. These funds branches. These are merely recommendations. State erything changes, however, when money is on the increases going into 2012, however, are intended to expand drug treat- court leaders should not necessarily employ each table. Some believe that because courts are funded have made court leaders optimistic ment programs and add designated recommendation or follow these recommendations by taxpayer dollars, court funding must undergo the that some funding will be restored.9 sex offender probation officers.15 precisely as outlined below. The recommendations same level of scrutiny as every other budgetary line would likely need to be adapted to the particular cir- item. Right or wrong, this is the new budget real- • As a result of recent cuts in Maine’s • Despite its embrace of voluntary cumstances of your state. Instead, the recommenda- ity¸ and one which judges and court administrative courts, court security has been cuts in FY2009, the Massachusetts tions are intended to help you develop a framework staff must accept and consider when devising their reduced, stay-away orders delayed, trial courts’ budget was cut again by for your advocacy efforts with members of your ex- outreach strategy. and technology improvement funds $25 million (about 4%) in FY2010, ecutive and legislative branches. slashed—all as the courts continue to resulting in a hiring freeze and a 7.5 taiLor Your message to the see 150,000 new cases on its dockets percent decrease in staff.16 In FY2012, PoLiticaL cLimate oF Your every year.10 In FY2012, the state did the governor approved another $24 in order to advocate communitY. not enact further significant cuts to million in state court cuts, despite No efforts that you undertake to save court budgets the judiciary’s budget, which allowed warnings from the Supreme Court for funding during should operate in a political vacuum. You must tailor many non-judge vacancies to be filled. Chief Justice that services would be this economic crisis, and shape your message based in large part on the po- Maine’s Supreme Court Chief Justice negatively impacted. All told, the cuts courts must approach litical climate of your state. For example, if your state has used the opportunity to call for, from the beginning of FY 2009 to the the budgetary process is focused on reducing prison costs, highlight the role among other things, the consolida- present come to $96 million, and have proactively, effectively, of the courts in diverting offenders from prison; if tion of services and improvements to led to a loss of over 1100 positions. your state faces judicial scandals, demonstrate how technology.11 Upon passage of these cuts, the chief and humbly.

2 | PeRsPectives on stAte couRt LeAdeRshiP seRies KeePing courts Funded | 3

Court Funding—The New Normal ■ Baldwin ■ 25 funding will ensure the scandals never happen again; do not stand aLone: Partner deveLoP a coherent if the courts are viewed as aloof, apply the personal with the LegisLature and while ethical rules may limit touch and show how courts have a positive impact on executive branch on other communication the lives of citizens of the state. More globally, con- Projects. strategY some judges from engaging sider how to frame your message in a political climate The Judiciary cannot act like it simply stands alone. in the legislative process, at a be accessibLe. in which some leaders and their constituents seek to Instead, building a good relationship with the other minimum court administrative Administrative staff should be available to answer any drastically shrink the size of the government. How are branches of government is critical and should not be- budgetary questions or to provide any relevant data staff should weigh in on the courts different from what is perceived by some as gin with, nor solely revolve around, the budget. This to policy makers. Consider making one person a leg- legislative initiatives on a a “typical government bureaucracy” that wastes tax- could include working on joint grant proposals, shar- islative liaison who can provide the necessary infor- payer dollars? ing information about IT projects, creating informal regular basis, even if only to mation, develop long-term relationships within gov- advisory boards or task forces, or even something as offer technical advice. ernment, and coordinate with the appropriate people simple as brown bag lunches on topics of mutual understand and accePt that within the courts. Courts should not be viewed as interest. court budgets maY be cut. aloof, arrogant, or above it all. Failing to respond to There is no question that in most states, every single requests for information or data may lead to such line item, including court funding, is on the table. engage directLY with the negative conclusions. Present weLL, with good data. Realization of this fact is critical to developing a pro- LegisLature and executive active strategy of avoiding future cuts. Budgeting branch on non-budgetarY Responses to requests for information or data dur- decide who Your sPoKesPerson and advocating for funds in a manner like that of the matters. ing budget/appropriations hearings or in response wiLL be. to appropriate questions at other times should be other branches of government is not beneath the ju- While ethical rules may limit some judges from en- There is often no substitute for a dynamic, well-represented in a persuasive and readable manner. Use diciary, and judges and court administrators who are gaging in the legislative process, at a minimum court spected voice. In some states, that is the chief justice. these occasions as opportunities to highlight what reluctant to accept this reality need to be convinced administrative staff should weigh in on legislative In others, it is an associate justice or another judge the courts do, the public benefits to such work, and otherwise very quickly. initiatives on a regular basis, even if only to offer who once served in the legislature and is well-regard- the costs involved. Tell a story with your data; use technical advice. Providing information at the last ed by his or her former peers, or it can be a member the data to make the case for why your work is so minute, particularly in a reactive way, only engenders of the court’s administrative staff who has good re- important. Also, remember that the information you hostility. Moreover, lawmakers bristle when the only lations with the governor’s office and legislature and provide may be analyzed by people who themselves deveLoP reLationshiPs time that the courts engage with the other branches can most effectively lobby for the courts. And as gov- are overworked and cannot spend a lot of time re- is during budget season. Individual judges and key with KeY individuaLs and ernors, legislatures, and courts change, the spokesper- viewing what you send them. As a result, whatever staff may have particular relations with members of grouPs son for the court may need to change as well. you provide must be in a user-friendly and easily-ac- the other two branches. Identify these relationships, cessible format. Finally, learn how agencies that have Find a PowerFuL aLLY in the develop and use them. budgetary success budget and present themselves. LegisLature. sPeaK with one voice. Following a successful model may be helpful with A legislator—one who has some power—who can Perceived divisions between and among justices, some decision- makers. An example could be to show passionately advocate for the courts may be able to judges, or administrative staff can stymie efforts to the cost savings and reduction in local and/or state save the courts from significant cuts. Legislators at secure funding. Opponents of the courts will use in- prison population that specialty courts have helped the budget negotiating table are often in a position to ternal divisions to thwart its attempts to secure line to achieve. Another example could be to show how stave off particular cuts. Having one powerful senior items or other funding. Court leaders must empha- the judiciary cannot court innovations and improvements in efficiencies legislative ally will likely be more beneficial than hav- size the importance of cooperation on funding issues. act like it simply stands are resulting in the collection of fines and fees that ing dozens of legislators who lack the power to affect alone. would otherwise have gone unrealized. budgetary line-items on your side. In states with term highLight Your successes. limits, however, a powerful staffer who stays in his Self-promotion is a good thing. It may earn you some be cLear regarding the reaL-LiFe or her position of influence as members come and extra funding and give you the opportunity to show- imPact that cuts wiLL have. go is an important person to have advocating for the case your branch with passion and sincerity. Methods Because every dollar is in jeopardy, do not be afraid courts and is someone who will likely be of enormous of appropriately highlighting successes include annu- to highlight how cuts to the court budget will impact assistance. al reports, meetings with key officials from the execu- lives, be it by cutting victim services or probation offi- tive and legislative branches, press releases, interviews cers, shutting down treatment courts, increasing case- with reporters, or discussions with stakeholders who loads that judges must handle, or causing stay-away come before the courts on a daily basis.

4 | PeRsPectives on stAte couRt LeAdeRshiP seRies KeePing courts Funded | 5

26 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 funding will ensure the scandals never happen again; do not stand aLone: Partner deveLoP a coherent if the courts are viewed as aloof, apply the personal with the LegisLature and while ethical rules may limit touch and show how courts have a positive impact on executive branch on other communication the lives of citizens of the state. More globally, con- Projects. strategY some judges from engaging sider how to frame your message in a political climate The Judiciary cannot act like it simply stands alone. in the legislative process, at a be accessibLe. in which some leaders and their constituents seek to Instead, building a good relationship with the other minimum court administrative Administrative staff should be available to answer any drastically shrink the size of the government. How are branches of government is critical and should not be- budgetary questions or to provide any relevant data staff should weigh in on the courts different from what is perceived by some as gin with, nor solely revolve around, the budget. This to policy makers. Consider making one person a leg- legislative initiatives on a a “typical government bureaucracy” that wastes tax- could include working on joint grant proposals, shar- islative liaison who can provide the necessary infor- payer dollars? ing information about IT projects, creating informal regular basis, even if only to mation, develop long-term relationships within gov- advisory boards or task forces, or even something as offer technical advice. ernment, and coordinate with the appropriate people simple as brown bag lunches on topics of mutual understand and accePt that within the courts. Courts should not be viewed as interest. court budgets maY be cut. aloof, arrogant, or above it all. Failing to respond to There is no question that in most states, every single requests for information or data may lead to such line item, including court funding, is on the table. engage directLY with the negative conclusions. Present weLL, with good data. Realization of this fact is critical to developing a pro- LegisLature and executive active strategy of avoiding future cuts. Budgeting branch on non-budgetarY Responses to requests for information or data dur- decide who Your sPoKesPerson and advocating for funds in a manner like that of the matters. ing budget/appropriations hearings or in response wiLL be. to appropriate questions at other times should be other branches of government is not beneath the ju- While ethical rules may limit some judges from en- There is often no substitute for a dynamic, well-represented in a persuasive and readable manner. Use diciary, and judges and court administrators who are gaging in the legislative process, at a minimum court spected voice. In some states, that is the chief justice. these occasions as opportunities to highlight what reluctant to accept this reality need to be convinced administrative staff should weigh in on legislative In others, it is an associate justice or another judge the courts do, the public benefits to such work, and otherwise very quickly. initiatives on a regular basis, even if only to offer who once served in the legislature and is well-regard- the costs involved. Tell a story with your data; use technical advice. Providing information at the last ed by his or her former peers, or it can be a member the data to make the case for why your work is so minute, particularly in a reactive way, only engenders of the court’s administrative staff who has good re- important. Also, remember that the information you hostility. Moreover, lawmakers bristle when the only lations with the governor’s office and legislature and provide may be analyzed by people who themselves deveLoP reLationshiPs time that the courts engage with the other branches can most effectively lobby for the courts. And as gov- are overworked and cannot spend a lot of time re- is during budget season. Individual judges and key with KeY individuaLs and ernors, legislatures, and courts change, the spokesper- viewing what you send them. As a result, whatever staff may have particular relations with members of grouPs son for the court may need to change as well. you provide must be in a user-friendly and easily-ac- the other two branches. Identify these relationships, cessible format. Finally, learn how agencies that have Find a PowerFuL aLLY in the develop and use them. budgetary success budget and present themselves. LegisLature. sPeaK with one voice. Following a successful model may be helpful with A legislator—one who has some power—who can Perceived divisions between and among justices, some decision- makers. An example could be to show passionately advocate for the courts may be able to judges, or administrative staff can stymie efforts to the cost savings and reduction in local and/or state save the courts from significant cuts. Legislators at secure funding. Opponents of the courts will use in- prison population that specialty courts have helped the budget negotiating table are often in a position to ternal divisions to thwart its attempts to secure line to achieve. Another example could be to show how stave off particular cuts. Having one powerful senior items or other funding. Court leaders must empha- the judiciary cannot court innovations and improvements in efficiencies legislative ally will likely be more beneficial than hav- size the importance of cooperation on funding issues. act like it simply stands are resulting in the collection of fines and fees that ing dozens of legislators who lack the power to affect alone. would otherwise have gone unrealized. budgetary line-items on your side. In states with term highLight Your successes. limits, however, a powerful staffer who stays in his Self-promotion is a good thing. It may earn you some be cLear regarding the reaL-LiFe or her position of influence as members come and extra funding and give you the opportunity to show- imPact that cuts wiLL have. go is an important person to have advocating for the case your branch with passion and sincerity. Methods Because every dollar is in jeopardy, do not be afraid courts and is someone who will likely be of enormous of appropriately highlighting successes include annu- to highlight how cuts to the court budget will impact assistance. al reports, meetings with key officials from the execu- lives, be it by cutting victim services or probation offi- tive and legislative branches, press releases, interviews cers, shutting down treatment courts, increasing case- with reporters, or discussions with stakeholders who loads that judges must handle, or causing stay-away come before the courts on a daily basis.

4 | PeRsPectives on stAte couRt LeAdeRshiP seRies KeePing courts Funded | 5

Court Funding—The New Normal ■ Baldwin ■ 27 order delays. Demonstrate that peoples’ lives will be there are no guarantees The more you can do to foster good working rela- reFerences negatively affected. Show that businesses or corpora- tionships with policymakers in your state and dem- in the budgetary process. 1 John Schwartz, Critics Say Budget Cuts for Courts Risk tions will have more difficulty seeking justice as well, onstrate how integral the courts are to public safety, adequate court funding Rights, N.Y.Times (Nov. 26, 2011), http://www.nytimes. a strategy successfully employed recently in South victims, the administration of justice, the business com/2011/11/27/us/budget-cuts-for-state-courts-risk-rights- Carolina. is an open, fluid issue community, consumers, families, and everyone else, critics-say.html?pagewanted=all (“State courts hear 95 per- in many states, and in the more likely you are to avoid significant cuts to cent of the nation’s legal cases, so the cuts are affecting the these states the courts your funding. But such work requires a concerted, level where most people encounter the justice system”). organized self-assessment, as well as a proactive strat- must fight to ensure they 2 United States v. Peters, 9 U.S. 115, 122-23 (1809) (“the judge egy that must begin well before budget season in your engage during the receive it. and marshal of the court of admiralty of the state of Penn- budgetarY Process state. This work is quite different from the day-to-day sylvania had absolutely and respectively refused obedience work that judges, clerks, and court personnel typi- to the decree and writ regularly made in and issued from acKnowLedge that courts are cally perform. this court”). comPeting directLY with the Priorities oF governors and Judges expect those who come before them in the 3 Ohio is the most famous example of this. See Osborn v. Bank of the United States, 22 U.S. 738 (1824); Dwight Wiley LegisLators. demonstrate Your FiscaL courtroom to present not just the facts, but the im- Jessup, Reaction And Accommodation: The United When faced with the difficult decisions of whether Prudence. plications and importance of such facts and what they mean in the context before them. Legislators simi- States Supreme Court And Political Conflict 1809- and how much to cut such programs as education, No one likes an entity or body that spends more than larly expect you to justify their budget requests with 1835 232-44 (1987); Ernest L. Bogart, Taxation of the community development, and welfare spending, as it should; most respect one that is responsible with more than just simple facts and numbers. They expect Second Bank of the United States by Ohio, 17 Am. well as determining whether and by how much to in- taxpayer dollars. To help achieve such a reputation, budget requests to identify and analyze the real life Hist. Rev. 312, 323-30 (1912). crease or cut taxes, governors and legislators will look determine whether targeted cuts or freezes can be to appropriations in areas that are of less import to implications of funding, justify what benefit the state made, such as freezing salaries, implementing rolling 4 Abraham Lincoln, Speech on the Dred Scott Decision them. For some, that means the courts. Your mindset will derive from appropriate levels of funding, and, furloughs to administrative staff, eliminating non-es- (June 26, 1857) (“But we think the Dred Scott decision is by contrast, what harm the state will suffer if funding must be that you are competing with programs and sential programs, or shifting to competitive sourcing erroneous. We know the court that made it has often over- is inadequate. appropriations from other entities, including legisla- for supplies and equipment. Highlight how innova- ruled its own decisions, and we shall do what we can to tive and executive branch agencies. But you should tive programs such as treatment courts have saved have it overrule this.”). Of course, expect the unexpected. The budgetary dy- also remember and think about highlighting that the your state money. percentage of the overall budget for which the court namics are not only unpredictable, but are often dif- 5 Kevin M. Kruse, The Paradox of Massive Resistance: Politi- accounts is likely small. ferent every budget cycle. cal Conformity and Chaos in the Aftermath of Brown v. Board of Education, 48 St. Louis U. L.J. 1009 (2004).

coLLect data and PubLish concLusion 6 William Glaberson, Cuts Could Stall Sluggish Courts at Every Turn, N.Y. Times (May 15, 2011). PerFormance measures. There are no guarantees in the budgetary process. Ad- Government agencies are increasingly required to equate court funding is an open, fluid issue in many publish performance measures, typically annually. 7 Two Reports, One Conclusion: NY Courts Hit Hard states, and in these states the courts must fight to en- By Budget Cuts, Reuters News And Insight (Jan. 19, Performance measures allow others to see what it is sure they receive it. Court leadership needs to realize 2012), http://newsandinsight.thomsonreuters.com/Legal/ that an agency or entity is actually accomplishing that there is a limited pot of taxpayer money avail- News/2012/01_-_January/Two_reports,_one_conclusion__ and, equally important, that it is carefully tracking able, and that they are competing directly with every NY_courts_hit_hard_by_budget_cuts/. what works and what does not. Relying upon the in- other entity that receives a budget appropriation. The formation in performance measures provides an op- collective mindset of court leadership must be “how 8 Bill Rankin, Budget Cuts, Increased Caseloads Taking Toll on Georgia Judiciary, Atlanta Journal-Constitution portunity to make the argument, backed up by data, can we make sure we receive enough money from the (Feb. 10, 2010). that courts are making many critical contributions, as Legislature.” Beginning to think of yourselves as one well a data-based argument that courts are not only of many important entities fighting for funds is help- 9 Associated Press, Georgia Courts Hopeful on making critical contributions but serving taxpayers ful; thinking of yourselves, by contrast, as above the Funds, Timesfreepress.Com (Jan. 14th, 2012), well by using data to improve the way courts operate. budgetary process and entitled to a certain portion of http://www.timesfreepress.com/news/2012/jan/14/ funding because you are the third branch of govern- georgia-courts-hopeful-funds/. ment is an invitation to be underfunded. 10 Judy Harrison, Maine Court System Not Alone in Doing More With Less, Bangor Daily News (June 8, 2011).

6 | PeRsPectives on stAte couRt LeAdeRshiP seRies KeePing courts Funded | 7

28 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 order delays. Demonstrate that peoples’ lives will be there are no guarantees The more you can do to foster good working rela- reFerences negatively affected. Show that businesses or corpora- tionships with policymakers in your state and dem- in the budgetary process. 1 John Schwartz, Critics Say Budget Cuts for Courts Risk tions will have more difficulty seeking justice as well, onstrate how integral the courts are to public safety, adequate court funding Rights, N.Y.Times (Nov. 26, 2011), http://www.nytimes. a strategy successfully employed recently in South victims, the administration of justice, the business com/2011/11/27/us/budget-cuts-for-state-courts-risk-rights- Carolina. is an open, fluid issue community, consumers, families, and everyone else, critics-say.html?pagewanted=all (“State courts hear 95 per- in many states, and in the more likely you are to avoid significant cuts to cent of the nation’s legal cases, so the cuts are affecting the these states the courts your funding. But such work requires a concerted, level where most people encounter the justice system”). organized self-assessment, as well as a proactive strat- must fight to ensure they 2 United States v. Peters, 9 U.S. 115, 122-23 (1809) (“the judge egy that must begin well before budget season in your engage during the receive it. and marshal of the court of admiralty of the state of Penn- budgetarY Process state. This work is quite different from the day-to-day sylvania had absolutely and respectively refused obedience work that judges, clerks, and court personnel typi- to the decree and writ regularly made in and issued from acKnowLedge that courts are cally perform. this court”). comPeting directLY with the Priorities oF governors and Judges expect those who come before them in the 3 Ohio is the most famous example of this. See Osborn v. Bank of the United States, 22 U.S. 738 (1824); Dwight Wiley LegisLators. demonstrate Your FiscaL courtroom to present not just the facts, but the im- Jessup, Reaction And Accommodation: The United When faced with the difficult decisions of whether Prudence. plications and importance of such facts and what they mean in the context before them. Legislators simi- States Supreme Court And Political Conflict 1809- and how much to cut such programs as education, No one likes an entity or body that spends more than larly expect you to justify their budget requests with 1835 232-44 (1987); Ernest L. Bogart, Taxation of the community development, and welfare spending, as it should; most respect one that is responsible with more than just simple facts and numbers. They expect Second Bank of the United States by Ohio, 17 Am. well as determining whether and by how much to in- taxpayer dollars. To help achieve such a reputation, budget requests to identify and analyze the real life Hist. Rev. 312, 323-30 (1912). crease or cut taxes, governors and legislators will look determine whether targeted cuts or freezes can be to appropriations in areas that are of less import to implications of funding, justify what benefit the state made, such as freezing salaries, implementing rolling 4 Abraham Lincoln, Speech on the Dred Scott Decision them. For some, that means the courts. Your mindset will derive from appropriate levels of funding, and, furloughs to administrative staff, eliminating non-es- (June 26, 1857) (“But we think the Dred Scott decision is by contrast, what harm the state will suffer if funding must be that you are competing with programs and sential programs, or shifting to competitive sourcing erroneous. We know the court that made it has often over- is inadequate. appropriations from other entities, including legisla- for supplies and equipment. Highlight how innova- ruled its own decisions, and we shall do what we can to tive and executive branch agencies. But you should tive programs such as treatment courts have saved have it overrule this.”). Of course, expect the unexpected. The budgetary dy- also remember and think about highlighting that the your state money. percentage of the overall budget for which the court namics are not only unpredictable, but are often dif- 5 Kevin M. Kruse, The Paradox of Massive Resistance: Politi- accounts is likely small. ferent every budget cycle. cal Conformity and Chaos in the Aftermath of Brown v. Board of Education, 48 St. Louis U. L.J. 1009 (2004). coLLect data and PubLish concLusion 6 William Glaberson, Cuts Could Stall Sluggish Courts at Every Turn, N.Y. Times (May 15, 2011). PerFormance measures. There are no guarantees in the budgetary process. Ad- Government agencies are increasingly required to equate court funding is an open, fluid issue in many publish performance measures, typically annually. 7 Two Reports, One Conclusion: NY Courts Hit Hard states, and in these states the courts must fight to en- By Budget Cuts, Reuters News And Insight (Jan. 19, Performance measures allow others to see what it is sure they receive it. Court leadership needs to realize 2012), http://newsandinsight.thomsonreuters.com/Legal/ that an agency or entity is actually accomplishing that there is a limited pot of taxpayer money avail- News/2012/01_-_January/Two_reports,_one_conclusion__ and, equally important, that it is carefully tracking able, and that they are competing directly with every NY_courts_hit_hard_by_budget_cuts/. what works and what does not. Relying upon the in- other entity that receives a budget appropriation. The formation in performance measures provides an op- collective mindset of court leadership must be “how 8 Bill Rankin, Budget Cuts, Increased Caseloads Taking Toll on Georgia Judiciary, Atlanta Journal-Constitution portunity to make the argument, backed up by data, can we make sure we receive enough money from the (Feb. 10, 2010). that courts are making many critical contributions, as Legislature.” Beginning to think of yourselves as one well a data-based argument that courts are not only of many important entities fighting for funds is help- 9 Associated Press, Georgia Courts Hopeful on making critical contributions but serving taxpayers ful; thinking of yourselves, by contrast, as above the Funds, Timesfreepress.Com (Jan. 14th, 2012), well by using data to improve the way courts operate. budgetary process and entitled to a certain portion of http://www.timesfreepress.com/news/2012/jan/14/ funding because you are the third branch of govern- georgia-courts-hopeful-funds/. ment is an invitation to be underfunded. 10 Judy Harrison, Maine Court System Not Alone in Doing More With Less, Bangor Daily News (June 8, 2011).

6 | PeRsPectives on stAte couRt LeAdeRshiP seRies KeePing courts Funded | 7

Court Funding—The New Normal ■ Baldwin ■ 29 11 Chief Justice Leigh I. Saufley, State of the Judiciary Ad- dress, Supreme Court of Maine, (Feb. 9, 2012).

12 David Ovalle, Court System in Peril Amid Budget Crisis Cuts, Miami Herald (Feb. 27, 2011).

13 Editorial, Judges Should Carry Gavels, Not Tin Cups, Orlando Sentinel (Nov. 22, 2011).

14 John O’Brien, Courts Submit Budget Cuts to Gov. Man- chin, West Virginia Record (Jan. 6, 2010).

15 Andrea Lannom, West Virginia Experiences Increase in Judicial Budget, West Virginia State Journal (Jan. 12, 2012).

16 Bill Archambeault, Additional Budget Cuts Forcing Trial Court Dept. to Consider Layoffs, Courthouse Closings, Massa- chusetts Bar Lawyers J. (Mar. 2009), available at http:// www.massbar.org/publications/lawyers-journal/2009/ march/additional-budget-cuts.

17 Bill Archambeault, Chief Justices Warn 2012 Budget Will Force Layoffs, Court Closings, Massachusetts Bar Lawyers J., (Aug. 2011), http://www.massbar.org/publications/lawyers- journal/2011/august/chief-justices-warn-2012-budget-will- force-layoffs,-court-closings.

8 | PeRsPectives on stAte couRt LeAdeRshiP seRies

30 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 11 Chief Justice Leigh I. Saufley, State of the Judiciary Ad- dress, Supreme Court of Maine, (Feb. 9, 2012).

12 David Ovalle, Court System in Peril Amid Budget Crisis Cuts, Miami Herald (Feb. 27, 2011).

13 Editorial, Judges Should Carry Gavels, Not Tin Cups, Orlando Sentinel (Nov. 22, 2011).

14 John O’Brien, Courts Submit Budget Cuts to Gov. Man- chin, West Virginia Record (Jan. 6, 2010).

15 Andrea Lannom, West Virginia Experiences Increase in Judicial Budget, West Virginia State Journal (Jan. 12, 2012).

This project was supported by Grant No. 2007-DD-BX-K056 awarded by the Bureau of Justice Assistance. The Bureau of Justice Assistance is a component of the Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, the Office for Victims of Crime, and the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking. Points of view or opinions in this document are those of the authors and do not necessarily represent the official position or policies of the U.S. Department of Justice. 8 | PeRsPectives on stAte couRt LeAdeRshiP seRies

Court Funding—The New Normal ■ Baldwin ■ 31 members oF the executive session For state court Leaders in the 21st centurY

Jeff Amestoy Margaret Marshall Fellow, Harvard Kennedy School; Chief Justice, Chief Justice, Supreme Judicial Court Vermont Supreme Court, Retired, of Massachusetts, Retired David Barron Mary McQueen Professor of Law, Harvard Law School President, National Center for State Courts Daniel Becker Mee Moua State Court Administrator, Utah Administrative Vice President for Strategic Impact Initiatives, Asian & Office of the Courts Pacific Islander American Health Forum (APIAHF); Senator, Minnesota Senate, Retired Michael Bridenback Trial Court Administrator, Barbara Rodriguez Mundell Thirteenth Judicial Circuit (Tampa, FL) Presiding Judge, Superior Court of AZ, Maricopa County, Retired Russell Brown Court Administrator, Cleveland Municipal Court Judith Resnik Arthur Liman Professor of Law, Yale Law School John Cleland Judge, Superior Court of Pennsylvania Greg Rowe Chief of Legislation and Policy Unit, Philadelphia Paul DeMuniz District Attorney’s Office Chief Justice, Supreme Court of Oregon Randall Shepard Christine Durham Chief Justice, Supreme Court of Indiana Chief Justice, Supreme Court of Utah Jed Shugerman Ted Eisenberg Assistant Professor of Law, Harvard Law School Henry Allen Mark Professor of Law, Cornell Law School Christopher Stone Guggenheim Professor of the Practice of Criminal Rosalyn Frierson Justice, Harvard Kennedy School State Court Administrator, South Carolina Judicial Department Michael Trickey Judge, King County Superior Court Thomas Gottschalk Of Counsel at Kirkland & Ellis William Vickrey Retired Administrative Director, Garrett Graff California Administrative Office of the Courts Editor-in-Chief, Washingtonian Magazine Eric Washington James Hannah Chief Judge, District of Columbia Court of Appeals Chief Justice, Arkansas Supreme Court Julie Boatright Wilson Vicki Jackson Harry Kahn Senior Lecturer in Social Policy, Harvard Carmack Waterhouse Professor of Constitutional Law, Kennedy School Georgetown University Law Center Wallace Jefferson Chief Justice, Supreme Court of Texas

32 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 Financial Influences on the Judiciary

Honorable Wallace B. Jefferson

Alexander Dubose Jefferson Townsend LLP

515 Congress Avenue, Suite 2350 Austin, TX 78701-3562 (512) 482-9300 (512) 482-9303 [fax] [email protected] Hon. Wallace B. Jefferson comes from a rather remarkable background. He is the great, great, great grandson of a slave who was owned by a Texas judge before the Civil War. Justice Jefferson graduated from James Madison College at Michigan State University, and from the University of Texas School of Law. Prior to becoming a member of the Texas Supreme Court, and eventually its chief justice, Justice Jef- ferson was an outstanding appellate lawyer, and early in his career had argued two cases before the United States Supreme Court by age 35. He retired from the Texas court in October 2013. Financial Influences on the Judiciary

Table of Contents Presentation...... 37

Financial Influences on the Judiciary ■ Jefferson ■ 35

Presentation

JEFFERSON-LIVE.DOCX(DO NOT DELETE) 6/16/20149:11 AM

BRENNAN LECTURE LIBERTY AND JUSTICE FOR SOME: HOW THE LEGAL SYSTEM FALLS SHORT IN PROTECTING BASIC RIGHTS

THE HONORABLE WALLACE B. JEFFERSON∗

The legal community has long recognized that indigent citizens often lack access to the judicial system. Pro bono programs and legal aid organizations have attempted to address this issue. In the Nineteenth Annual Justice William J. Brennan, Jr. Lecture on State Courts and Social Justice, Wallace B. Jefferson, former Chief Justice of the Supreme Court of Texas, argues that there are barriers to justice not only for the indigent but also for middle-class Americans. He explores how our most valuable rights are often the least protected. Tenants subject to eviction rarely have counsel, veterans wait years to receive earned benefits, and juveniles cannot invoke the Sixth Amendment to challenge civil fines. Chief Justice Jefferson explores reforms and alternatives that are available when traditional paths to justice are blocked, and he highlights some of the obstacles faced in creating these alternatives.

INTRODUCTION ...... 101 I. BARRIERS TO JUSTICE...... 103 II. BREAKING DOWN BARRIERS ...... 110 A. Increasing Access for Self-Represented Litigants ...... 112 1. Forms...... 117 2. Self-Help Centers...... 120 B. Expedited Actions ...... 120 C. Unbundling and Ghostwriting...... 121 D. Nonlawyer Solutions...... 123 E. Legal Education...... 126 CONCLUSION...... 127

INTRODUCTION When only a third of Americans can name the three branches of

∗ Copyright © 2013 by Wallace B. Jefferson, Chief Justice, Retired, Supreme Court of Texas. A version of this speech was delivered on February 27, 2013, for the annual Justice William J. Brennan, Jr. Lecture on State Courts and Social Justice at New York University School of Law. I want to acknowledge the contributions of my staff attorney, Rachel Ekery, who is, for all practical purposes, co-author of this paper. I would also like to thank David Slayton, director of our Office of Court Administration, and James Hernandez, our intern, for their research assistance.

101

Financial Influences on the Judiciary ■ Jefferson ■ 37 JEFFERSON-LIVE.DOCX (DO NOT DELETE) 6/16/20149:11 AM

102 NEW YORK UNIVERSITY LAW REVIEW [Vol. 88:nnn

government, something is wrong.1 Fewer than half of our middle schoolers know what the Bill of Rights guarantees.2 Two-thirds of us can identify an American Idol judge, but only fourteen percent can name the Chief Justice of the United States.3 Within this collective ignorance, the Pledge of Allegiance stands as a notable exception. Written in 1892, the pledge first appeared in a youth magazine that urged students to recite the affirmation.4 Fifty years later, Congress passed, and the President signed, a joint resolution codifying the custom of pledging allegiance to the flag.5 Today, the Pledge is the most widely recited promise in the nation, required by law in the public schools of most states.6 Over time, its text has evolved,7 but one phrase has endured: In schools, at naturalization ceremonies,8 at public events, and judicial investitures,9 we affirm our loyalty to a nation that

1 See HowardBlume, Building the Case for Civics Lessons; Sandra Day O’Connor Promotes an Online Program to Teach How Government Works, L.A. TIMES, Dec. 27, 2011, at AA1 (explaining Americans’“slim knowledge of civics—and the potential risk it poses to American democracy”). 2 See SamDillon, Civics Education Called National Crisis, N.Y. TIMES, May 5, 2011, at A23 (reporting the results of a civics examination taken by eighth graders). 3 Mary Kate Cary, Civics 101: The Supreme Court vs. American Idol, U.S. NEWS & WORLD REP. THOMAS JEFFERSON ST. BLOG (Apr. 13, 2010), http://www.usnews.com/opinion/blogs/mary-kate-cary/2010/04/13/civics-101-the-supreme-court- vs-american-idol. 4 Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 6 (2004). 5 Pub. L. No. 77-623, 56 Stat. 377, 380 (1942) (codified as amended at4 U.S.C. § 4 (2012)). 6 Most states have passed laws encouraging, if not requiring, daily recitation of the pledge. See, e.g., CAL. EDUC. CODE § 52720 (West 2006) (requiring “appropriate patriotic exercises”at the beginning of each school day and stating that the pledge “shall satisfy the requirements of this section”); N.Y. EDUC. LAW § 802 (McKinney 2009) (requiring the education commission to prepare a program providing for daily pledge of allegiance); TEX. EDUC. CODE § 25.082(b)(1) (West 2012) (requiring students to recite the pledge each day); see also State Requirements on Pledge of Allegiance in Schools, PROCON.ORG,http://undergod.procon.org/view.resource.php?resourceID=000074 (last visited Oct. 11, 2013)(illustrating the states that require students to recite the pledge and those that allow students the option). 7 Before the Pledge was codified, the National Flag Conferences exchanged the phrase “my Flag”for the modern “the flag of the United States of America.”Elk Grove, 542 U.S. at 6 (internal quotation marks omitted).In 1954, Congress added the words “under God.” Act of June 14, 1954, Pub. L. No. 83-396, 68 Stat. 249 (1954) (codified as amended at 4 U.S.C. § 4 (2012)).In 2002, shortly after the Ninth Circuit concluded that a California school district’s practice of teacher-led recitation of the Pledge with the words “under God” violated the Establishment Clause, Congress “reaffirmed the exact language that has appeared in the Pledge for decades.” Act of Nov. 13, 2002, Pub. L. No. 107-293, § 2, 116 Stat. 2057, 2060 (2002) (codified at 4 U.S.C. § 4 (2012)); see also Newdow v. U.S. Cong., 328 F.3d 466, 489 (9th Cir. 2003) (holding it impermissible for schools to coerce students to recite the Pledge), rev’d on other grounds sub nom.Elk Grove,542 U.S. at 1. 8 See, e.g., JeffKunerth, Memorable Fourth of July Celebration: Dozens Pledge Loyalty as U.S. Citizens, ORLANDO SENTINEL, July 5, 2013, at B1 (describing naturalization ceremony and new citizens’ recitation of the Pledge of Allegiance). 9 See, e.g., EllenCarnes, Lehrmann Sworn In as Texas Supreme Court Justice, 74 TEX. BAR J. 198, 198 (2011) (noting that Justice Debra H. Lehrmann’s sons led the Pledge of Allegiance at

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December 2013] BRENNAN LECTURE 103 promises “liberty and justice for all.” Are we living up to this ideal? Differences in financial status, educational disparities, access to those in positions of power—each of these factors and others influence whether a person whose rights are violated has the ability to forge a remedy in court. The rule of law, practiced by experts in the legal profession, exists to afford a remedy even for the poor, the ignorant, and the powerless. Yet, in the real world, many fundamental rights are illusory. We are not living up to the ideal.

I BARRIERS TO JUSTICE For those who can afford it, we have a top-notch legal system. Highly qualified lawyers, who know the art of cross-examination and who compose scholarly briefs, help courts dispense justice fairly and efficiently. But that kind of representation comes at a price. More often, litigants lack wealth, insurance is absent, and public funding is not available. Some of our most essential rights—those involving our families, our homes, and our livelihoods—are the least protected. Veterans languish an average of eight months before the government processes their claims for disability, pension, and educational benefits.10 Their poverty rate has increased.11 They face physical and mental trauma, and they comprise twenty percent of the homeless population.12 They experience significantly higher rates of unemployment than nonveterans.13 The financial crisis has created ripple effects throughout society. Lower- and middle-income homeowners and tenants are grappling with legal issues as never before.14 Facing foreclosure or eviction, they can little her investiture ceremony). 10 See JamesDao, Veterans Wait for Benefits as Claims Pile Up, N.Y. TIMES, Sept. 28, 2012, at A1 (noting the average claims-processing rate in 2012). 11 SeeNAT’L CTR. FOR VETERANS ANALYSIS & STATISTICS,U.S. DEP’T OF VETERANS AFFAIRS, HEALTH INSURANCE COVERAGE, POVERTY, AND INCOME OF VETERANS: 2000 TO 2009, at 9 (2011), available at http://www.va.gov/vetdata/docs/SpecialReports/HealthIns_FINAL.pdf (“In 2000, about 5.0 percent of Veterans were living in poverty. By 2009, the poverty rate for Veterans was 6.3 percent.”). 12 United States: Leave No Veteran Behind, ECONOMIST, June 4, 2011, at 38, available at http://www.economist.com/node/18775315 (noting that “[n]early a fifth of the homeless population in the United States are veterans” and that more face physical and mental challenges). 13 Marta Hoes, Comment, Invisible Wounds: What Texas Should Be Doing for the Mental Health of Its Veterans, 13 TEX. TECH ADMIN. L.J. 369, 373 (2012) (comparing the unemployment rate of veterans with the national average and finding the former to be elevated in comparison to the latter). 14 See Aleatra P. Williams, Real Estate Market Meltdown, Foreclosures and Tenants’ Rights, 43 IND. L. REV. 1185, 1187 (2010) (“The consequence of the current real estate market collapse and the resulting foreclosures and their effect on the tenant market is unparalleled in history.”); ChrisArnold, Foreclosures Loom Large for Middle Class, NPR (Aug. 14, 2009, 12:34 PM),

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afford representation to protect their rights. Over the past several years, high numbers of consumers and small businesses have sought bankruptcy protection.15 American children are also at risk when interacting with the legal system. A family’s lack of resources dramatically affects domestic matters, like custody and child support. Apart from that, families must grapple with issues involving juvenile justice. Texas has one of the largest school systems in the nation, with more than 4.4 million students.16 Children who misbehave in school are often issued tickets and may be charged with Class C misdemeanors.17 They must appear in court to contest the charges but they have no right to counsel.18Cash-strapped families forgo representation, often with devastating consequences, such as arrest warrants and criminal records.19 Thirty years ago, then-president of Harvard University Derek Bok delivered a stinging assessment of our system of justice.20 He observed that our country, which prides itself on efficiency and fairness, “has developed a legal system that is the most expensive in the world, yet cannot manage to

http://www.npr.org/templates/story/story.php?storyId=111890779 (“[A]s the crisis expands, it’s dragging down more middle-class Americans who are making less money because of the battered economy.”). 15 Although data suggest that consumer and small business bankruptcies may now be declining, their levels remain elevated, with 2010 levels more than three times what they were in 2006. SeeDrop in Small Business Bankruptcies Outpaces Decline in Consumer Bankruptcies, EQUIFAX, 1 (2011), http://www.equifax.com/ecm/pressroom/BankruptcyDataPrimerFinal.pdf (charting the rate of small business and consumer quarterly petitions for bankruptcy from the first quarter of 2006 through the last quarter of 2010). 16 SeeTEX. APPLESEED, TEXAS’[S] SCHOOL-TO-PRISON PIPELINE: DROPOUT TO INCARCERATION 3 (2007),available at http://www.texasappleseed.net/pdf/Pipeline%20Report.pdf (finding that at least 4.4 million students attend public schools in the state’s 1037 school districts). 17 See Wallace B. Jefferson, Recognizing and Combating the “School-to-Prison” Pipeline in Texas, NAT’L CTR. FOR STATE COURTS, http://www.ncsc.org/sitecore/content/microsites/future-trends-2012/home/Other-pages/SchoolTo Prison-Pipeline-In-Texas.aspx (last visited Oct. 11, 2013); see also ErikEckholm, With Police in Schools, More Children in Court, N.Y. TIMES (Apr. 12, 2013), http://www.nytimes.com/2013/04/12/education/with-police-in-schools-more-children-in- court.html (noting that Texas students given criminal citations at schools “may face hundreds of dollars in fines, community service and, in some cases, a lasting record that could affect applications for jobs or the military”). 18 See Eckholm, supra note 17 (noting that although students may be “sent to court for relatively minor offenses” they “seldom get legal aid”). 19 See TEX. APPLESEED, TEXAS’[S] SCHOOL-TO-PRISON PIPELINE: TICKETING, ARREST & USE OF FORCE IN SCHOOLS 71 (2010), available athttp://www.texasappleseed.net/images/stories/reports/Ticketing_Booklet_web.pdf (noting that juveniles in Texas do not have a right to appointed counsel in Class C misdemeanor cases and observing that young people may plead guilty to such charges simply because they are unaware of viable defenses). 20 See Derek C. Bok, A Flawed System of Law Practice and Training, 33 J. LEGAL EDUC. 570 (1983).

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December 2013] BRENNAN LECTURE 105 protect the rights of most of its citizens.”21 He famously observed that “[t]here is far too much law for those who can afford it and far too little for those who cannot.”22 Is the picture any brighter today? This Lecture’s title—the Justice William J. Brennan, Jr. Lecture on State Courts and Social Justice—is fitting, because it is our state courts that citizens turn to most often, and Justice Brennan, whose judicial roots were planted in the New Jersey state- court system,23 was probably well aware of that fact. The overwhelming majority of civil cases—more than ninety-five percent—are filed in state courts.24 To ask whether liberty and justice are available to all, we must first diagnose the health of our state courts. If those courts are inaccessible, so is our justice system. It comes as no surprise that the poor lack access to justice; without the means to hire a lawyer, their legal needs frequently go unmet. But the problem is not exclusively one of indigency. In fact, the poor benefit from an infrastructure geared toward assisting with their critical needs. In 1974, Congress created the Legal Services Corporation, now the “single largest funder of civil legal aid for low-income Americans in the nation.”25The LSC provides grants to 134 independent nonprofit legal aid programs in more than 800 offices.26Countless other organizations provide ad hoc pro bono legal services, and private lawyers help bridge the gap by volunteering their services.27 In some cases, states provide constitutional

21 Id. at 574. 22 Id. at 571. 23 LindaGreenhouse, William Brennan, 91, Dies; Gave Court Liberal Vision, N.Y. TIMES, July 25, 1997, at A1 (noting that Justice Brennan “began his judicial career on the state courts of New Jersey”). 24 In 2010, for example, 18,980,531 civil cases(98.5%) were filed in state courts; 282,307 (1.5%) were filed in federal courts. Civil Caseloads Fell 3 Percent in 2010: Civil Graphics 1, COURT STATISTICS PROJECT (Sept. 24, 2012), http://www.courtstatistics.org/Civil/20121Civil.aspx (follow “Get Data” hyperlink) (state case figure); Table C: U.S. District Courts—Civil Cases Commenced, Terminated, and Pending During the 12-Month Periods Ending March 31, 2009 and 2010, U.S. COURTS, http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/Statistics/FederalJudicialCaseloadStatistics/ 2010/tables/C00Mar10.pdf (showing 282,307 civil cases filed in U.S. district courts between April 1, 2009 and March 31, 2010). 25 LEGAL SERVS. CORP., Fact Sheet on the Legal Services Corporation, http://www.lsc.gov/about/what-is-lsc (last visited Oct. 11, 2013). 26 Id. 27 See, e.g., Wendy L. Watson, The U.S. Supreme Court’s In Forma Pauperis Docket: A Descriptive Analysis, 27 JUST. SYS. J. 47, 56 (2006) (observing that given the “informal legal advice for prison inmates . . . [and] similar networks of legal support for indigent civil litigants”that exist, “[l]ay-legal-support services may actually be more available to indigent communities, including prison populations, than they are to citizens in somewhat more affluent nonindigent communities,” so that “the collective knowledge and advice of these groups may give indigent pro se petitioners an edge over paying pro se petitioners”).

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and statutory rights to counsel for the indigent.28 Although the U.S. Supreme Court has held that the Due Process Clause of the Fourteenth Amendment does not always require the appointment of counsel for indigent parents in parental rights termination proceedings,29 most states mandate appointed counsel in such cases.30 In my own court, we have had tremendous success with a pro bono program that matches appellate lawyers with indigent pro se litigants for cases the court would like to study further.31 Increasingly across the country, there is talk of, if not funding for, “civil Gideon,” providing low-income individuals with lawyers in civil cases when “basic human needs” are at issue.32 Of course, we have a long way to go before we are meeting the legal needs of the poor. Federal funding cuts and nearly nonexistent interest rates have sharply reduced the availability of legal aid in recent years,33 even as

28 See, e.g., MONT. CODE ANN. § 41-3-425 (2011) (requiring appointment of counsel for indigent parent in termination proceeding); NEB. REV. STAT. § 43-279.01 (2013) (same); N.J. STAT. ANN. § 30:4C-15.4 (2008) (same); see also, e.g., Pasqua v. Council, 892 A.2d 663, 675–76 (N.J. 2006) (recognizing that the state constitution’s due process guarantee requires assignment of counsel for indigents facing civil commitment proceedings). 29 See Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 27, 31–32 (1981) (rejecting a categorical right to counsel in parental termination cases and holding that trial courts should instead weigh the factors outlined in Mathews v. Eldridge, 424 U.S. 319, 335 (1976), to assess the need for counsel on a case-by-case basis). 30 See, e.g., VivekSankaran, A National Survey on a Parent’s Right to Counsel in Termination of Parental Rights and Dependency Cases, YOUTH, RTS. & JUST., http://www.youthrightsjustice.org/documents/surveyparentrighttocounsel.pdf (last visited Oct. 11, 2013) (outlining states in which parents have a statutory or state constitutional right to counsel in termination and dependency cases); see also Lassiter, 452 U.S. at 33–34 (noting that “[a] wise public policy . . .may require that higher standards be adopted than those minimally tolerable under the Constitution” and observing that thirty-three states have statutes requiring the appointment of counsel in termination cases). 31 For a general description of the program, see Michael S. Truesdale, Why I Support Appellate Pro Bono Services (and Why You Should Too), 24 APP. ADVOC. 614, 617–19 (2012). 32 See, e.g.,AM. BAR ASS’N, REPORT OF THE TASK FORCE ON ACCESS TO CIVIL JUSTICE ON RESOLUTION 112A 1 (Aug. 7, 2006), available at http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sc laid_06A112A.authcheckdam.pdf(urging “federal, state, and territorial governments to provide legal counsel as a matter of right at public expense to low income persons in those categories of adversarial proceedings where basic human needs are at stake”and providing examples such as actions involving “shelter, sustenance, safety, health or child custody”). In Gideon v. Wainwright, 372 U.S. 335, 339–40 (1963), the Supreme Court of the United States held that the Sixth Amendment grants an indigent defendant the right to state-appointed counsel in a criminal case. 33 Congress has cut Legal Services Corporation’s funding from $420 million in 2010 to $404 million in 2011 and $348 million for 2012. Catherine Ho, Groups Funded by Legal Services to Cut Jobs in 2012, WASH. POST, Jan. 30, 2012, at A12. In 2012, “Texas experienced a $6.2 million loss in federal funds to the three largest legal aid providers in the state due to federal funding cuts to the Legal Services Corporation.”TEX. ACCESS TO JUSTICE COMM’N, A REPORT TO THE SUPREME COURT ADVISORY COMMITTEE FROM THE TEXAS ACCESS TO JUSTICE COMMISSION ON THE COURT’S UNIFORM FORMS TASK FORCE 3 n.13(2012) [hereinafter REPORT TO THE SUPREME COURT], available at http://www.texasatj.org/files/file/041012TAJCReporttoSCACREVISED.pdf. Funds from Texas

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December 2013] BRENNAN LECTURE 107 more Americans are qualifying for legal assistance34 in the wake of an 8.9% drop in real median income in the United States from its 1999 peak.35 Nonetheless, the existing infrastructure provides some assistance for our neediest citizens. This raises another question, however: What about those individuals who do not qualify for legal aid but still cannot afford a lawyer? The middle class and small businesses find our system unworkable and unaffordable.36 Statutory rights to counsel generally apply only to the indigent, as do most pro bono efforts.37 Legal aid eligibility is generally capped at 125% of federal poverty guidelines.38 Thus, a family of four with an income of $30,000 generally will not qualify for services.39 But after that family pays for shelter, sustenance, and the other necessities of daily

IOLTA accounts dropped from $20 million in 2007 to just $4.4 million four years later. Id. IOLTA, an acronym that stands for “Interest on Lawyers’ Trust Accounts,”represents interest earned on pooled trust accounts that lawyers hold for their clients andis a major source of legal aid funding. See Funding a Way to Justice For All, FORT WORTH STAR-TELEGRAM, Mar. 16, 2011, at A10;see also Texas State Bar Rules, art. XI, § 2 (2008) (asserting that interest income on certain client funds held by attorneys “should be used to provide additional legal services to the indigent in civil matters”). 34 SeeLEGAL SERVS. CORP., DOCUMENTING THE JUSTICE GAP IN AMERICA: THE CURRENT UNMET CIVIL LEGAL NEEDS OF LOW-INCOME AMERICANS 1–2 (2009), available at http://www.lsc.gov/sites/default/files/LSC/pdfs/documenting_the_justice_gap_in_america_2009. pdf (noting that the number of unrepresented litigants appearing before certain courts, “especially those courts that deal with issues affecting low-income people,” has increased and that many unrepresented individuals “are low-income people who qualify for legal aid”). 35 CARMEN DENAVAS-WALT ET AL., U.S. CENSUS BUREAU, INCOME, POVERTY, AND HEALTH INSURANCE COVERAGE IN THE UNITED STATES: 2011, at 5 (2012), http://www.census.gov/prod/2012pubs/p60-243.pdf. 36 See, e.g., Order in the Matter of the Adoption of New APR 28—Limited Practice Rule for Limited License Legal Technicians, No. 25700-A-1005, at 4 (Wash. 2012), available at http://www.courts.wa.gov/content/publicUpload/Press%20Releases/25700-A-1005.pdf (noting that a 2003 study showed that the legal system was unaffordable for moderate-income households—those with incomes between 200% and 400% of the federal poverty level); Ruth Bader Ginsburg, In Pursuit of the Public Good: Access to Justice in the United States, 7 WASH. U. J.L. & POL’Y 1, 2 (2001) (“It remains true, however, that the poor, and even the middle class, encounter financial impediments to a day in court. They do not enjoy the secure access available to those with full purses or political muscle.”); Stephen N. Zack, Justice in Jeopardy, THE HILL’S CONGRESS BLOG (Mar. 17, 2011, 3:47 PM), http://thehill.com/blogs/congress- blog/judicial/150531-justice-in-jeopardy(reporting on an American Bar Association (ABA) survey showing that lawyers and judges believe that “small businesses are increasingly unable to obtain speedy, reasonably affordable justice”). 37 See, e.g., TEX. FAM. CODE § 107.013(a)(1) (West Supp. 2012) (“In a suit filed by a governmental entity in which termination of the parent-child relationship is requested, the court shall appoint an attorney ad litem to represent the interests of . . .an indigent parent of the child who responds in opposition to the termination.”). 38 Financial Eligibility Policies, 45 C.F.R. § 1611.3(c)(1) (2012). 39 Butsee 45 C.F.R. § 1611.5(a) (2012) (noting that in some instances, eligibility may be capped at 200% of the federal poverty guidelines by household size as determined by the Department of Health and Human Services); see also Notice, 78 Fed. Reg. 5182, 5183 (Jan. 24, 2013) (establishing a poverty guideline of $23,550 for a four-person household).Thus, in some instances, a household of four making less than $47,100 can qualify.

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life, it is unlikely that family will be able to afford a lawyer for even the most basic legal necessities.40 With no real alternative, litigants are increasingly representing themselves. Although there are no comprehensive statistics on self-represented litigants in our nation’s courts,41 an American Bar Association (ABA) survey found that 60% of state judges recently noted an increase in the number of litigants representing themselves.42 In Texas, the number of petitioners filing family law cases pro se increased from 15.9% in 2011 to 17% in 2012.43 And that number does not account for self-represented defendants.44 In New York, 2.3 million pro se litigants try to find their way through the civil justice system each year.45 In New Hampshire, 70% of divorce cases involve at least one self-represented party.46 In Connecticut, 85% of family cases involve at least one such person.47 In New Jersey, a stunning 99% of defendants in landlord-tenant disputes last year appeared pro se.48 This is not just a problem in trial courts; nearly a third of the U.S. Supreme Court’s in forma pauperis petitions were filed by self-represented litigants,49 and more than a fifth of all petitions for review filed in my court in the first three months of 2012 involved pro se petitioners.50 Even without comprehensive statistics, the number of people representing themselves appears significant. Yet, we have more lawyers than at any time in our history. “In 1960, there was one

40 See Susan D. Carle, Re-Valuing Lawyering for Middle-Income Clients, 70 FORDHAM L. REV. 719, 721 (2001) (“The fact is that the majority of Americans live on quite modest incomes and lack the discretionary spending power necessary to purchase expensive legal services in today’s market.”). 41 See Nathan Koppel, More Strapped Litigants Skip Lawyers in Court, WALL ST. J., July 22, 2010, at A4 (noting the lack of such statistics). 42 Id. 43 OFFICE OF COURT ADMIN., ANNUAL STATISTICAL REPORT FOR THE TEXAS JUDICIARY, FISCAL YEAR 2012, at 71 (2013), available at http://www.txcourts.gov/pubs/AR2012/AR12.pdf; see also Avi Salzman, Going It Alone in Divorce Court, N.Y. TIMES, Sept. 11, 2005, at CT1 (noting that the percentage of self-represented parties in divorce cases in Connecticut increased nearly five percent from 2004 to 2005). 44 See OFFICE OF COURT ADMIN.,supra note 43(reporting only on percentage of self- represented petitioners). 45 REPORT TO THE SUPREME COURT, supra note 33, at 16. 46 John T. Broderick, Jr., The Changing Face of Justice in a New Century: The Challenges It Poses to State Courts and Court Management, inFUTURE TRENDS IN STATE COURTS 2010, at 60, 62 (Carol R. Flango et al. eds., 2010), available at http://ncsc.contentdm.oclc.org/cdm/singleitem/collection/ctadmin/id/1605/rec/2. 47 Chase T. Rogers, Chief Justice, Connecticut Supreme Court, Keynote Address at the Connecticut Bar Association 1 (June 11, 2012), available at http://www.ncsc.org/~/media/Files/PDF/Information%20and%20Resources/Budget%20Resource %20Center/CBA%20Annual%20Meeting%20Dinner%202012.ashx. 48 John J. Farmer, Jr., Op-Ed.,To Practice Law, Apprentice First, N.Y. TIMES, Feb. 18, 2013, at A17. 49 See Watson, supra note 27, at 52 (reviewing the percentage of such petitions for the terms 1976 through 1985). 50 See Truesdale, supra note 31, at 618.

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December 2013] BRENNAN LECTURE 109 lawyer for every 627 people in the United States”;51 today, there is one for every 252.52 Certainly, it can be argued that more lawyers are necessary in an increasingly complex world. Nevertheless, it is ironic that, as litigants are increasingly forced to represent themselves, law school graduates cannot find jobs.53 What accounts for this mismatch, and how can we ensure that our system is accessible to all segments of our society?54 The problems we face are not uniquely American. Chief Justice Beverley McLachlin has spoken eloquently about Canada’s struggles to make its legal system more accessible to the poor and middle class alike. We should listen closely to what she has to say: The Canadian legal system is sometimes said to be open to two groups—the wealthy and corporations at one end of the spectrum, and those charged with serious crimes at the other. The first have access to the courts and justice because they have deep pockets and can afford them. The second have access because, by and large, and with some notable deficiencies, legal aid is available to the poor who face serious charges that may lead to imprisonment. To the second group should be added people involved in serious family problems, where the welfare of children is at stake; in such cases the Supreme Court has ruled that legal aid may be a constitutional requirement. It is obvious that these two groups leave out many Canadians. Hard hit are average middle-class Canadians. They have some income. They may have a few assets, perhaps a modest home. This makes them ineligible for legal aid. But at the same time, they quite reasonably may be unwilling to put a second mortgage on the house or gamble with their

51 Robert C. Clark, Why So Many Lawyers? Are They Good or Bad?, 61 FORDHAM L. REV. 275, 275 (1992). 52 Dividing the number of people in the United Statesby the number of attorneysshows that there is one attorney for every 251.94 people.SeePAUL MACKUN & STEVEN WILSON, U.S. CENSUS BUREAU, POPULATION DISTRIBUTION AND CHANGE: 2000 TO 2010, at 4 tbl.2 (2011), available at http://www.census.gov/prod/cen2010/briefs/c2010br-01.pdf (showing total U.S. population as 308,745,538); JamesPodgers, State of the Union: The Nation’s Lawyer Population Continues to Grow—Barely, 97 A.B.A. J. 58, 58 (2011) (noting that as of December 31, 2010, there were 1,225,452 “resident and active” attorneys in the United States);see also Bok, supra note 20, at 571 (observing that the United States has more lawyers per thousand persons than “any major industrialized nation—three times as many as in Germany, ten times the number in Sweden, and a whopping twenty times the figure in Japan”). 53 Catherine Rampell, The Lawyer Surplus, State by State, N.Y. TIMES (June 27, 2011, 11:35 AM), http://economix.blogs.nytimes.com/2011/06/27/the-lawyer-surplus-state-by-state/ (noting that “across the country, there were twice as many people who passed the bar in 2009 . . .as there were [job] openings”). 54 One explanation focuses on financial incentives. See John O. McGinnis & Russell D. Mangas, Op-Ed., First Thing We Do, Let’s Kill All the Law Schools, WALL ST. J., Jan. 17, 2012, at A15 (observing that the steep cost of legal education results in higher legal fees, making legal services unaffordable to the middle class “at a time when increasing complexity demands more access to these services” and concluding that “the current system leaves citizens underserved and young lawyers indebted”).

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child’s college education or their retirement savings to pursue justice in the courts. Their options are grim: use up the family assets in litigation; become their own lawyers; or give up.55 Her assessment also rings true in America. Is this acceptable? Are we satisfied with a system that serves only the few? If not, how can we fix it?

II BREAKING DOWN BARRIERS Increased pro bono work by lawyers is always a good idea, and many lawyers do step in to help those who could not otherwise afford their services. New York now requires bar applicants to complete fifty hours of pro bono legal work.56 Many law schools mandate pro bono service from their students57 and have created legal clinics providing excellent representation for the indigent.58 As noted above, my court adopted a pro bono appellate program several years ago.59 We noticed that self-represented, indigent parties sometimes presented issues warranting closer study, but we knew that those individuals might not be able to brief and argue the case as well as trained counsel could. We created a pilot program that matched pro bono appellate lawyers with litigants in those cases. If three justices determine that the case presents a compelling legal question and requires extensive briefing, we refer the case to our program. The pro se litigant is offered a volunteer attorney, who is aided by a board-certified appellate attorney, to provide briefs on the merits and, if review is granted, to argue the case in our court. We have referred dozens of cases to that program. More than three hundred lawyers have signed up to participate. Several of our intermediate appellate courts have adopted similar initiatives, and we are in the process

55 Beverley McLachlin, Chief Justice of Canada, Remarks at the Empire Club of Canada (Mar. 8, 2007) (internal citations omitted), available at http://www.scc-csc.gc.ca/court- cour/judges-juges/spe-dis/bm-2007-03-08-eng.aspx. 56 N.Y. COMP. CODES R. & REGS. tit. 22, § 520.16 (2013) (imposing the pro bono requirement on graduates who will be admitted to the bar on or after January 1, 2015 and following an examination); see also Joel Stashenko & Christine Simmons, Lippman Unveils Rule Detailing Bar Admission Pro Bono Mandate, 248 N.Y. L.J., Sept. 20, 2012, at 1 (reporting on the new requirement). 57 See Robert Granfield, Institutionalizing Public Service in Law School: Results on the Impact of Mandatory Pro Bono Programs, 54 BUFF. L. REV. 1355, 1364 (2007) (“While mandatory pro bono remains hotly contested within the organized bar, the majority of American law schools have already implemented some type of pro bono program and many have adopted mandatory requirements.”). 58 See, e.g., Clinical Education at UT Law, U. TEX. AUSTIN SCH. L., http://www.utexas.edu/law/clinics/ (last visited Oct. 11, 2013) (describing seventeen clinical programs at the University of Texas School of Law, including a Housing Clinic and a Transnational Worker Rights Clinic). 59 For a general description of the program, see Truesdale, supra note 31, at 617–19.

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December 2013] BRENNAN LECTURE 111 of taking it statewide. But encouraging or even requiring pro bono representation cannot match the scale of the problem. In 2009, Texas attorneys provided as many as 2.5 million hours of free legal or indirect services to the poor.60 While this is impressive, we are still meeting only about twenty to twenty-five percent of the civil legal needs of low-income Texans.61 Even if we required every Texas lawyer to represent at least one client pro bono, we would serve less than forty percent of indigent individuals in need of legal services,62 to say nothing of the millions of middle-class individuals who need representation. In Southwest Texas alone, 2.6 million people qualify for legal aid.63 That means that there are 21,000 potential clients for every lawyer employed by the region’s main legal aid office.64 This situation is echoed across the country.65 Increased funding would help provide more services. But in today’s economic climate, even maintaining existing funding has proved challenging.66 Still, there have been recent governmental efforts to increase access to legal help. In 2010, the U.S. Department of Justice established the Access to Justice Initiative to address the crisis in our justice system.67 Two related goals of the initiative are to “[p]romote less lawyer-intensive and court-

60 D’Arlene Verduin & Paul Ruggiere, State Bar of Texas Survey of 2009 Pro Bono, TEX. ACCESS TO JUST. COMM’N, at i(Mar. 31, 2010), http://www.texasatj.org/files/file/Pro%20Bono%20Survey%202009.pdf. 61 Facts and Figures, TEX. ACCESS TO JUST. COMM’N, http://www.texasatj.org/facts(last visited Oct. 11, 2013). 62 REPORT TO THE SUPREME COURT, supra note 33, at 5. 63 Who We Are,TEX. RIO GRANDE LEGAL AID, http://www.trla.org/about/who-we-are (last visited Oct. 11, 2013). 64 Id. 65 See Gillian Hadfield, Lawyers, Make Room for Nonlawyers, CNN (Nov. 25, 2012, 12:25 PM), http://www.cnn.com/2012/11/23/opinion/hadfield-legal-profession (arguing that “the demand for ordinary legal help is simply too massive to meet with increased court funding, legal aid or pro bono work”). 66 There has been a persistent campaign in Texas for legal aid funding. See Letter from Wallace B. Jefferson, Chief Justice, Supreme Court of Tex., and Nathan L. Hecht, Justice, Supreme Court of Tex., to Royce West, Tex. State Senator2 (June 1, 2011),available at http://www.supreme.courts.state.tx.us/advisories/Letter_West_060111.pdf (seeking funding for basic civil legal services for indigent Texans). In 2011, the Texas legislature authorized gap funding for legal aid. See Press Release, Tex. Access to Just. Comm’n, Texas Access to Justice Commission and Foundation Applaud the Texas Legislature for Providing Funding for the State’s Legal Aid System (July 21, 2011), available at http://www.texasatj.org/commissionandfoundationapplaudlegislature (describing the Texas Legislature’s appropriation of $17.5 million for civil legal aid and $7.6 million for county indigent defense programs to compensate for a decline in IOLTA funding); see alsoH. Con. Res. 22, 82d Leg., 1st Called Sess. (Tex. 2011)(commending members of the Texas Supreme Court for advocating for funding “to ensure that all citizens have equal access to the civil justice system”). 67 See Eric Holder, U.S. Attorney General, Remarks at the Shriver Center Awards Dinner (Oct. 14, 2010),available at http://www.justice.gov/iso/opa/ag/speeches/2010/ag-speech- 1010141.html (commenting on the establishment of the Access to Justice Office).

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intensive solutions to legal problems” and to“[e]xpand research on innovative strategies” to close the justice gap.68The initiative has partnered with a Middle Class Task Force to take steps to bolster foreclosure mediation programs and assist veterans with legal challenges.69 But neither money nor additional pro bono work is enough.70And if neither money nor increased pro bono will suffice to meet the challenge, what more can we do?

A. Increasing Access for Self-Represented Litigants Technology has the capability to increase access to justice, particularly for self-represented litigants. Today, courts publish their decisions on their own websites, rather than relying exclusively on commercial electronic databases. Case information, including parties’ briefs, is readily available to anyone with a computer. Ten years ago, a person who wanted to see an oral argument in our court had to travel to Austin or purchase a recording (available only on cassette tape). Today, those arguments are webcast live and available to anyone, anywhere in the world, at any time and at no cost.71 These technological changes may have bolstered an economically motivated increase in the number of self-represented litigants, but self- represented litigants are nothing new. Our country’s founders believed self- representation to be a basic right of a free society, and the Supreme Court has held that the Sixth Amendment to the U.S. Constitution guarantees that right in criminal cases.72 Today, that right is provided for by statute in civil cases in the federal courts73 and by the provisions of state constitutions,

68 MELANCA CLARK & DANIEL OLMOS, U.S. DEP’T OF JUSTICE, ACCESS TO JUSTICE INITIATIVE, REPORT FROM THE MARCH 7, 2011, WORKSHOP AT THE U.S. DEPARTMENT OF JUSTICE (2011), available athttp://www.justice.gov/atj/foreclosure-mediation.pdf. 69 See BrianLevine, Helping Middle-Class Families Pursue Justice, WHITE HOUSE BLOG (Nov. 19, 2010, 4:31 PM), http://www.whitehouse.gov/blog/2010/11/19/helping-middle-class- families-pursue-justice (describing remarks by Vice President Biden concerning recent efforts to boost foreclosure mediation programs, help veterans facing legal challenges, and assist workers in finding qualified attorneys). 70 Derek Bok, echoing a call for reform that still rings true, has argued: [M]oney alone will not suffice. In cases involving . . .disputes that touch the lives of ordinary folk, judges will have to develop less costly ways of resolving disputes . . . . Likewise, lawyers will need to devise new institutions to supply legal services more cheaply. Such changes, in turn, will undoubtedly force the organized bar to reexamine traditional attitudes toward fee-for-service and the unauthorized practice of law. Bok, supra note 20, at 580. 71 Texas Supreme Court Oral Argument Search, TEX. B. CLE, http://www.TexasBarCLE.com/CLE/TSCSearch.asp (last visited Oct. 11, 2013). 72 Faretta v. California, 422 U.S. 806, 832 (1975) (“The Framers selected in the Sixth Amendment a form of words that necessarily implies the right of self-representation. That conclusion is supported by centuries of consistent history.”). 73 28 U.S.C. § 1654 (2006) (“In all courts of the United States the parties may plead and

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December 2013] BRENNAN LECTURE 113 statutes, or procedural rules in the courts of most states.74 Guaranteed or not, however, self-representation presents problems both for litigants and courts. Parties get lost in a maze designed for trained professionals. There is also the perception, perhaps unfounded, that their claims are more likely to be frivolous.75 And larger pro se dockets increase systemic costs, as courts devote additional resources to self-represented parties, exacting a toll on court staff and judges. As self-represented parties proliferate, so do problems of access. Nonetheless, these are cases that go to the core of American families’ rights and well-being. Certain types of cases, historically including family law and welfare benefits cases, are more prevalent on the U.S. Supreme Court’s in forma pauperis docket, which also includes a high proportion of self-represented litigants.76 Any solution, then, requires that we confront the persistent reality that people are forced to proceed alone. How can state courts help ensure that pro se parties get the process they are due? We can find some guidance in Turner v. Rogers, a 2011 U.S. Supreme Courtdecision.77 To put that case in context, recall Gideon v. Wainwright, decided almost fifty years earlier.78 Clarence Gideon had been arrested in Florida and charged with breaking and entering.79 Gideon, who could not afford a lawyer, asked the Florida courts to appoint one.80The trial court refused because Florida law guaranteed counsel only in capital cases.81 Gideon represented himself at trial, and the jury returned a guilty verdict.82 While serving his sentence, Gideon, using a pencil and prison

conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.”). 74 See, e.g., ALA. CONST. art. I, § 10 (“That no person shall be barred from prosecuting or defending before any tribunal in this State, by himself or counsel, any civil cause to which he is a party.”); N.C. GEN. STAT. § 1-11 (2012) (“A party may appear either in person or by attorney in actions or proceedings in which he is interested.”); TEX. R. CIV. P. 7 (“Any party to a suit may appear and prosecute or defend his rights therein, either in person or by an attorney of the court.”);JONA GOLDSCHMIDT ET AL.,AM. JUDICATURE SOC’Y,MEETING THE CHALLENGE OF PRO SE LITIGATION: A REPORT AND GUIDEBOOK FOR JUDGES AND COURT MANAGERS 23, 130–34 (1998), available at http://cdm16501.contentdm.oclc.org/cdm/ref/collection/accessfair/id/106 (listing the fifteen states that protected the right by constitution or statute in 1998). 75 See, e.g., Watson, supra note 27, at 52(noting that the high percentage of self-represented litigants on Supreme Court’s in forma pauperis docket contributes to “the perception that the [in forma pauperis] petitions are more frivolous than the paid petitions; a claim that appears frivolous when expressed by an uneducated layperson may take on a patina of legitimacy when presented by trained legal counsel”). 76 Id. at 51–52. 77 131 S. Ct. 2507 (2011). 78 372 U.S. 335 (1963). 79 Id. at 336. 80 Id. at 337. 81 Id. 82 Id.

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stationery, wrote a petition to the U.S. Supreme Court,83 which granted certiorari.84Gideon argued that the Constitution guaranteed him counsel in criminal proceedings,85 a proposition that the Court (of which Justice Brennan was then a member) adopted.86On retrial, Gideon—now represented by counsel—was acquitted.87 After Gideon, courts and advocacy groups struggled with how the ruling might apply in the civil realm. Eighteen years later, the Supreme Court ruled out a categorical constitutional right to counsel in parental rights termination proceedings88 and for some time afterwards, hopes for a “civil Gideon”remained dormant.89 More recently, however, there has been renewed interest in a civil Gideon,90which came to a head in Turner v. Rogers.91 Turner originated in the South Carolina state courts.92 A South Carolina family court had ordered Michael Turner to make weekly child support payments to Rebecca Rogers. When Turner failed to pay, the clerk ordered him to appear and explain why he should not be held in contempt. Turner and Rogers, each representing themselves, appeared at the hearing. After questioning Turner, the court held him in contempt, and he was incarcerated. While serving his sentence, Turner—now represented by pro bono counsel—appealed.93 He argued that the trial court’s refusal to appoint counsel violated his constitutional right to counsel. The South Carolina Supreme Court rejected his argument,94 and Turner petitioned the Supreme Court of the United States for certiorari, which the Court granted.95

83 The petition may be viewed at The U.S. National Archives Photostream. Petition for Writ of Certiorari, Gideon, 372 U.S. 335 (No. 890),available at http://www.flickr.com/photos/usnationalarchives/4127740637/in/photostream/. 84 Gideon v. Cochran, 370 U.S. 908 (1962). 85 Gideon, 372 U.S. at 337. 86 Id.at 345. 87 Bruce R. Jacob, Memories of and Reflections About Gideon v. Wainwright, 33 STETSON L. REV. 181, 185 (2003). 88 See Lassiter v. Dep’t of Soc. Servs. of Durham Cnty., 452 U.S. 18, 31 (1981). 89 Benjamin H. Barton & StephanosBibas, Triaging Appointed-Counsel Funding and Pro Se Access to Justice, 160 U. PA. L. REV. 967, 980 (2012) (“Following Lassiter, civil Gideon hopes lay fallow for many years.”). 90 Seeid. (noting that the renewal was perhaps fueled in part by the call to action in a 1997 speech by U.S. District Judge Robert Sweet at the Yale Law School). 91 131 S. Ct. 2507 (2011). 92 See id. at 2513. The Brennan Center for Justice at New York University School of Law submitted an amicus brief in support of the petitioner. Brief for Nat’l Ass’n of Criminal Def. Lawyers, Brennan Ctr. for Justice, Nat’l Legal Aid and Defender Ass’n, S. Ctr. for Human Rights & Am. Civil Liberties Union as Amici Curiae Supporting Petitioner, Turner v. Rogers, 131 S. Ct. 2507 (2011) (No. 10-10), 2011 U.S. S. Ct. Briefs LEXIS 33. 93 131 S. Ct. at 2514. 94 Price v. Turner, 691 S.E.2d 470, 472 (S.C. 2010). 95 Turner v. Rogers, 131 S. Ct. 504 (2010).

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Dealing an apparent blow to civil Gideon advocates nationwide, the Court held that the Constitution’s Due Process Clause does not automatically require appointed counsel for an indigent parent facing jail time for civil contempt.96 But there is much more to the opinion than that. The Supreme Court explored how lower courts can provide adequate process to self-represented litigants in such cases. The defendant’s ability to pay is a critical question in civil contempt proceedings based on the failure to pay child support. The Court, picking up on a point made in an amicus brief submitted by the Solicitor General of the United States,97 explained that certain kinds of court-provided procedural safeguards could substitute for the lack of appointed counsel: Those safeguards include (1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status[ ] (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay.98 The Court observed that these protections “can significantly reduce the risk of an erroneous deprivation of liberty.”99The Court also explained how, in certain situations, appointed counsel could make the proceeding “less fair overall.”100It emphasized that, unlike in a criminal case, the person opposing the defendant at a civil contempt hearing is not the government, represented by counsel, but the custodial parent, who may also be unrepresented.101 In such a case, state-appointed counsel for one parent may put the self-represented other parent at an unfair disadvantage and introduce unwarranted “formality or delay.”102The Court concluded that the Due Process Clause did not require the provision of counsel when the opposing party is unrepresented and the State provides “alternative procedural safeguards equivalent to those we have mentioned (adequate notice of the importance of ability to pay, fair opportunity to present, and to dispute, relevant information, and court findings).”103Because neither a lawyer nor those safeguards were provided, however, the Court vacated the South Carolina judgment and remanded the case for further proceedings.104 We have much to learn from this decision and developments since it

96 Turner v. Rogers, 131 S. Ct. 2507, 2520 (2011). 97 Id. at 2519. 98 Id. 99 Id. 100 Id. 101 Id. 102 Id. 103 Id. at 2520. 104 Id.

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was issued. First, despite this ruling, civil Gideon is not dead; several states have recently taken steps to expand the right to counsel for civil litigants.105 We may find, as in the parental rights termination context, that the Supreme Court’s rejection of a categorical federal constitutional right to counsel leads to state recognition of the right, either by statute or under state constitutions.106 As Justice Brennan himself urged, state constitutions can be a “font of individual liberties”and may secure rights greater than those guaranteed by the U.S. Constitution.107 Many states already recognize a right to counsel in civil contempt proceedings that may lead to incarceration,108 although, to the extent that recognition of the right is based on the U.S. Constitution, Turner’s full impact remains to be seen.109 Second, there is little doubt that Turner heralds a new era for self- represented litigants. The Court had previously stressed the importance of counsel,110 including in cases like Powell v. Alabama:111

105 See, e.g., Lawrence J. Siskind, Civil Gideon: An Idea Whose Time Should Not Come, AM. THINKER (Aug. 6, 2011), http://www.americanthinker.com/2011/08/civil_gideon_an_idea_whose_time_should_not_come. html (noting that the Alaska Bar Association Board of Governors and the Conference of Delegates of California Bar Associations, now known as the Conference of California Bar Associations, have passed resolutions endorsing civil Gideon, that other state bar associations have established committees to examine the issue, and that “[t]he California legislature has enacted a pilot program, funded by increased court cost fees, that is expected to funnel about $11 million to legal aid societies that provide counsel to civil litigants”). 106 See ClarePastore, Life After Lassiter: An Overview of State-Court Right-to-Counsel Decisions, J. POVERTY L. & POL’Y, July–Aug. 2006, at 186, 191–92(describing how several states have held that state constitutions provide a categorical right to counsel in parental rights termination cases, despite the lesser standard imposed under the Lassiter Court’s interpretation of the U.S. Constitution). 107 William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 HARV. L. REV. 489, 491 (1977) (“State constitutions[’] . . . protections often extend[] beyond those required by the Supreme Court’s interpretation of federal law. The legal revolution which has brought federal law to the fore must not . . . inhibit the independent protective force of state law—for without it, the full realization of our liberties cannot be guaranteed.”); see also Thomas R. Phillips, The Constitutional Right to a Remedy, 78 N.Y.U. L. REV. 1309, 1310, 1344 (2003) (noting that remedies clauses, which “guarantee . . . a right of access to the courts to obtain a remedy for injury”and are found in the constitutions of forty states, “may impose some level of responsibility on courts to see that all citizens secure the promise of equal justice under the law”). 108 See Elizabeth G. Patterson, Civil Contempt and the Indigent Child Support Obligor: The Silent Return of Debtor’s Prison, 18 CORNELL J.L. & PUB. POL’Y 95, 138–39 (2008) (noting that approximately half of all states recognize a right to counsel in civil contempt proceedings); see also, e.g., TEX. FAM. CODE § 157.163 (West 2008) (providing a right to counsel for indigent respondents facing possible incarceration). 109 See Patterson, supra note 108, at 139 n.244 (observing that “[m]any courts have relied on the Supreme Court’s statement in [Lassiter]that the indigent individual’s interest in personal freedom is the trigger for the right to appointed counsel” (citation omitted)); see also, e.g.,Black v. Div. of Child Support Enforcement, 686 A.2d 164, 167 (Del. 1996) (“The right to counsel in a civil contempt proceeding is derived from the Due Process Clause of the Fourteenth Amendment to the United States Constitution . . . .”). 110 See Barton & Bibas, supra note 89, at 986 (“The Court’s Sixth Amendment cases have regularly praised counsel as indispensable for procedural fairness.”).

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December 2013] BRENNAN LECTURE 117

Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he had a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.112 But Turner recognized the critical role courts must play in providing due process to self-represented litigants. As commentators have noted, “[i]n rejecting a broad new constitutional right, the Court steered toward more sustainable reform for pro se litigants.”113 For example, Benjamin Barton and Stephanos Bibas in the University of Pennsylvania Law Review assert that “[p]roperly understood, Turner recognizes and protects pro se litigants. . . . Not every court dispute requires a lawyer’s involvement, and neither litigants nor society can afford lawyers for each dispute. Rather than looking backward to Gideon, Turner invites forward-looking, flexible pro se alternatives.”114

1. Forms One of the safeguards the Turner Court mentioned was court-provided forms to elicit critical information from a self-represented party. The New York state courts have been leaders in this area, with free, do-it-yourself forms that can be completed online and submitted electronically.115 Corresponding YouTube videos guide people through the entire process

111 287 U.S. 45 (1932). 112 Id. at 69. 113 Barton &Bibas, supra note 89, at 970. 114 Id. at 988–89; see also DanielCurry, The March Toward Justice: Assessing the Impact of Turner v. Rogers on Civil Access-to-Justice Reforms, 25 GEO. J. LEGAL ETHICS 487, 498 (2012) (noting that Turner “requires judges to actively elicit relevant information from [litigants] to ensure fundamental fairness”and “should galvanize currentpro se court reforms, which attempt to make courts simpler and fairer for self-represented litigants”). 115 SeeN.Y. CT. HELP, www.nycourthelp.gov(last visited Oct. 11, 2013)(offering forms for family law, landlord-tenant, probate, and other matters).

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and provide simple and clear instructions.116 My court recently adopted forms for simple divorce cases (those involving no real property and no children), and I would like to talk a bit about that experience. In 2010, the Texas Access to Justice Commission held a two-day statewide forum on self-represented litigants.117 Attendees discussed “the impact pro se litigants have on the court system and evaluated tools to enable the courts to help pro se litigants navigate the legal system and to improve court efficiencies.”118It became clear that statewide standardized forms for pleadings frequently used by self- represented litigants would aid those efforts.119 As a result of that discussion, the Supreme Court of Texas appointed a Uniform Forms Task Force to develop standardized forms.120 Although we recognized that “[t]he legal system functions most effectively when each litigant is represented by an attorney,”we knew that parties increasingly appeared in courts pro se because they could not afford an attorney and had been unable to obtain representation from legal aid.121 Task Force members included judges, private lawyers, legal services attorneys, court clerks and administrators, and law librarians.122 We agreed that developing court- approved pleading and order forms “would increase access to justice and reduce the strain on courts posed by pro se litigants.”123 The Task Force concluded that family law generally, and divorce in particular, presented the most pressing need.124 It developed “a set of instructions and forms for an uncontested divorce [for a couple] with no children and no real property.”125At the time, forty-eight states had court- approved family law forms, and thirty-seven had divorce forms.126 In those states utilizing them, standardized forms have increased “judicial efficiency

116 See, e.g., N.Y. State Courts Access to Justice Program, New York State Court’s [sic] Support Modification DIY Forms, YOUTUBE, http://www.youtube.com/watch?v=_34J99kKwDY(last visited Oct. 11, 2013) (explaining how to seek modifications of child support orders). In Arizona, the Maricopa County Superior Court offers similar guidance. SeeSuperior Court Maricopa County Videos, YOUTUBE, http://www.youtube.com/user/SuperiorCourtAZ/videos (last visited Oct. 11, 2013) (providing video explanations of how to apply for guardianships, complete court forms, and request a court interpreter, among other things). 117 Order Creating Uniform Forms Task Force, Misc. Docket No. 11-9046, at 1 (Tex. 2011), available at http://www.supreme.courts.state.tx.us/miscdocket/11/11904600.pdf. 118 Id. 119 Id. 120 Id. at 2. 121 Id. at 1. 122 Id. at 2. 123 Id. at 1. 124 REPORT TO THE SUPREME COURT, supra note 33, at 3. 125 Id. 126 Id. at 7.

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December 2013] BRENNAN LECTURE 119 and economy.”127We in Texas were in the distinct minority.128 We encountered staunch opposition to the forms project, with the most strident objections coming from the bar.129 Our state bar’s family law section and other family lawyer groups opposed the forms, arguing that the court’s “foray into uniform forms raise[d] questions about the proper exercise of its powers.”130 They complained that we failed to limit use of the forms to the indigent, asserting that “[t]he Court’s stated purpose is to increase access to justice by use of the forms,” which is a “goal [that] will not be advanced by assisting those who already have access to justice, i.e., those who can afford an attorney.”131Finally, the associations argued that the development of uniform forms was “beyond the institutional capacity of the Texas Supreme Court and should be abandoned . . . .”132 We were also privy to nefarious emails circulated among divorce lawyers urging their colleagues to refrain from donating to the Texas Access to Justice Foundation133 and the state bar president asked us to suspend work on the forms.134 We declined to do so, noting that we had a duty to establish “a judicial climate in which people who lack money to hire a lawyer have a reasonable chance to vindicate their rights.”135 We considered the specific objections to the forms, revised them, and simplified them. In spite of the opposition, we approved the forms on November 13, 2012.136

127 Id. 128 See id. at 8 (noting that the forms available in Texas were “often inadequate for use by pro se litigants”). 129 See FAMILY LAW SECTION OF THE STATE BAR OF TEX. ET AL., RESPONSE TO THE REPORT OF THE UNIFORM FORMS TASK FORCE SUBMITTED TO THE TEXAS SUPREME COURT AS OF JANUARY 11, 2012, at 3 (2012), available at http://www.texasatj.org/files/file/FLGResponsetoForms041012.pdf (“Texas’ low-income litigants need legal advice, not another set of inadequate forms that will harm their most important interests.”). 130 Id.at 5. 131 Id. at 21. 132 Id. at 22; see also Letter from State Bar of Tex., Family Law Section, to the Supreme Court of Tex. (May 2, 2012), available at http://www.texasatj.org/files/file/FLGSCOTLtrRevised050512.pdf (“We have documented the fact that . . . deviations from our system of law are clearly present in the forms presented to the Court, even after nine months of work by the Task Force.”). 133 See Patricia Kilday Hart, DIY Divorce Forms Divide Two Groups of Texas Lawyers, HOUS. CHRON., Feb. 3, 2012, at B1(“In this battle royale, some attorneys actually wanted to boycott Legal Aid fundraisers in retribution for the group allegedly consorting with the enemy.”). 134 Letter from Bob Black, Pres., State Bar of Tex., to author (Jan. 5, 2012), available at http://www.texasatj.org/files/file/14BarPresLettertoSupremeCourtJan52012.pdf. 135 Nathan Koppel, Self-Filed Divorces Rile Texas Attorneys,WALL ST. J. ONLINE (Feb. 24, 2012), http://online.wsj.com/article/SB10001424052970204778604577239480550755826.html. 136 See Order Approving Uniform Forms—Divorce Set One, Misc. Docket No. 12-9192, at 1 (Tex. 2012), available at http://www.supreme.courts.state.tx.us/miscdocket/12/12919200.pdf (noting approval date). For the forms themselves, see Uniform Forms—Divorce Set 1, No Minor Children, No Real Property (Tex. 2012), available at http://www.supreme.courts.state.tx.us/miscDocket/12/Divorcesetorder.pdf.

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2. Self-Help Centers Forms are not the only way courts can assist the self-represented. Many courts have created specialized centers to assist pro se litigants. The Fourth Judicial District Court of Minnesota offers a robust self-help center that provides assistance in family law, small claims matters, landlord-tenant disputes, and domestic violence situations.137 The center offers forms, a lawyer referral service, and free legal clinics staffed by volunteer attorneys.138 In San Antonio, a Pro Se Assistance Program utilizes a staff attorney “to review orders and organize the pro se docket,”enabling judges to review an average of 3000 to 3500 cases per year, approximately double the statewide average of 1600.139 The staff attorney answers self- represented litigants’ questions, tracks and coordinates inmate litigation, acts as ombudsman for the San Antonio Pro Bono Project, coordinates mediation, and generally assists with the pro se docket.140 California’s Administrative Office of the Courts has created a self-help website that includes a 900-page self-help guide for pro se litigants.141 It receives more than 100,000 visitors each month.142 These are just a few examples of the innovative approaches courts are using to increase access for self- represented litigants.

B. Expedited Actions We can also make it cheaper and easier to try simple cases. In Texas, we recently adopted rules to simplify proceedings in cases involving claims for monetary relief of less than $100,000.143 This is similar to the “fast track,”or summary, jury trial offered in New York, South Carolina, and California, with one notable difference: We are the first state to make the procedure mandatory in most cases.144 Discovery will be limited,145 and the

137 SeeSelf-Help Centers (4th District), MINN. JUD. BRANCH, http://www.mncourts.gov/district/4/selfhelp(last visited Oct. 11, 2013). 138 Id. 139 AnitaDavis, A Pro Se Program That Is Also “Pro” Judges, Lawyers, and the Public, 63 TEX. B.J. 896, 896 (2000). 140 Id. 141 Ronald M. George, Preface to RICHARDZORZA, NAT’L CTR. FOR STATE COURTS,THE SELF-HELP FRIENDLY COURT: DESIGNED FROM THE GROUND UP TO WORK FOR PEOPLE WITHOUT LAWYERS 8(2002), available at http://www.zorza.net/Res_ProSe_SelfHelpCtPub.pdf. 142 Id. 143 SeeTEX. GOV’T CODE ANN.§ 22.004(h) (West Supp. 2012) (requiring the Supreme Court of Texas to “adopt rules to promote the prompt, efficient, and cost-effective resolution of civil actions”involving less than $100,000); see also Adoption of Rules for Dismissals and Expedited Actions, Misc. Docket No. 12-9191, at 3 (Tex. 2012) [hereinafter Adoption of Rules], available at http://www.supreme.courts.state.tx.us/miscdocket/12/12919100.pdf(noting that “[s]mall measures cannot achieve that directive”). 144 See PAULA L. HANNAFORD-AGOR ET AL., NAT’L CTR. FOR STATE COURTS, SHORT, SUMMARY & EXPEDITED: THE EVOLUTION OF CIVIL JURY TRIALS 30, available at

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December 2013] BRENNAN LECTURE 121 cases will be expedited so that smaller cases can be disposed of more efficiently. Each side will be given eight hours to present its case, and the trial court can order the parties to alternative dispute resolution only when it will be comparably fast.146 The rule is not without controversy. Three sections of our state bar have objected to various provisions.147 The Litigation Section would prefer that the rule be voluntary, the Alternative Dispute Resolution Section objects to the limitation on referral to alternative dispute resolution, and the Family Law Section has objected to certain requirements involving discovery, among other things.148 But, after carefully considering those comments and hundreds of others, we revised the rules and adopted them on February 12, 2012.149

C. Unbundling and Ghostwriting Lawyers can help improve access to justice by offering narrower, targeted services that are cheaper yet still effective. Unbundling, also known as “discrete task representation,”or “limited scope representation,”permits a lawyer to provide only a portion of the services required to resolve a problem, with the client completing the remainder.150 The ABA’s support for unbundling is reflected in Rule 1.2(c) of its Model Rules of Professional Conduct, which allows a lawyer to “limit the scope of the representation if the limitation is reasonable under the circumstances

http://www.ncsc.org/~/media/Files/PDF/Information%20and%20Resources/Civil%20cover%20s heets/ShortSummaryExpedited-online%20rev.ashx (detailing the voluntary Summary Jury Trial program in Chautauqua County, New York, which began in 1998 and “offered a nonbinding option to resolve legal disputes”);Jeremy P. Ehrlich, The Expedited Jury Trials Act: Enhancing Access, Reducing Costs, and Increasing Efficiency, 42 MCGEORGE L. REV. 515, 518–22 (noting that “South Carolina’s model is completely voluntary” and also describing California’s voluntary system). 145 See Adoption of Rules, supra note 143, at 12–13 (limiting the time allowed for interrogatories, depositions, and requests for admissions, disclosures, and productions). Each party may spend a total of six hours examining and cross-examining witnesses in depositions. Id. at 12.In addition to time limitations, parties may serve on any other party no more than fifteen interrogatories, fifteen requests for production, and fifteen requests for admission. Id. 146 Id. at 8–9 (noting that the trial court may refer the parties to alternative dispute resolution, provided the cost is no more than twice the civil filing fees, and the process does not exceed a half-day in duration). 147 AngelaMorris, Expedited-Actions Rule Faces Opposition from Bar Sections, TEX. LAWYER, Feb. 4, 2013, http://www.law.com/jsp/tx/PubArticleTX.jsp?id=1202586573987. 148 Id. 149 See Final Approval of Rules for Dismissals and Expedited Actions, Misc. Docket No. 13- 9022 (Tex. 2012), available at http://www.supreme.courts.state.tx.us/miscdocket/13/13902200.pdf. 150 Richard Zorza, Self-Represented Litigants and the Access to Justice Revolution in the State Courts: Cross-Pollinating Perspectives Toward a Dialogue for Innovation in the Courts and the Administrative System, 29 J. NAT’L ASS’N OF ADMIN. L. JUD. 63, 74 & n.29 (2009).

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and the client gives informed consent.”151Although the provision has been in place since 2002, and states have widely adopted similar rules, “public opinion research demonstrates that a substantial portion of the public is unaware of the option to limit the scope of representation.”152 The ABA recently passed a resolution further supporting unbundled legal services and urging practitioners and courts alike to educate the public about limited scope representation as a means of increasing access to justice.153 Unbundling is less controversial than “ghostwriting,”in which an attorney drafts, but does not sign, pleadings or other legal documents for a litigant who then appears in court pro se.154 Although the ABA has endorsed the practice,155 opponents argue that it may provide self- represented litigants with an unfair advantage, as courts often construe pleadings filed by a pro se party more leniently than those signed by a lawyer.156 Proponents argue that ghostwriting provides a more affordable solution to a litigant who is otherwise unable to retain counsel to appear in court.157 A new study in the Harvard Law Review suggests that neither

151 MODEL RULES OF PROF’L CONDUCT R. 1.2(c) (2012). 152 AM. BAR ASS’N, REPORT OF THE STANDING COMMITTEE ON THE DELIVERY OF LEGAL SERVICES (Feb. 2013), http://www.americanbar.org/content/dam/aba/administrative/delivery_legal_services/ls_resolutio n_and_report_108.authcheckdam.pdf. 153 See AM. BAR ASS’N, Resolution 108(Feb. 11, 2013), http://www.americanbar.org/content/dam/aba/events/legal_aid_indigent_defendants/2013/05/nat_ 1_mtg_of_accesstojusticecmmnchairs/ls_sclaid_atj_adopted_unbundling_resolution_108.authche ckdam.pdf (“[T]he American Bar Association encourages practitioners . . . to consider limiting the scope of their representation, including the unbundling of legal services as a means of increasing access to legal services . . . . [T]he American Bar Association encourages . . .increas[ing] public awareness of the availability of limited scope representation . . . .”); see also Debra Cassens Weiss, Unbundle Legal Services, ABA House Resolution Urges, A.B.A. J. (Feb. 11, 2013, 4:30 PM), http://www.abajournal.com/news/article/unbundle_legal_services_aba_house_resolution_urges/(n oting that Resolution 108 was approved by the ABA House of Delegates). 154 See John C. Rothermich, Ethical and Procedural Implications of “Ghostwriting” for Pro Se Litigants: Toward Increased Access to Civil Justice, 67 FORDHAM L. REV. 2687, 2692 (1999) (describing the ghostwriting process, several contexts in which ghostwriting might occur, and the fact that ghostwriting may implicate ethical considerations). 155 ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 07-446, at 2–3 (2007) (concluding that ghostwriting is frequently acceptable because whether a pro se litigant has received undisclosed legal assistance is often “not material to the merits of the litigation”). 156 See, e.g.,Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam) (noting that pro se pleadings are held “to less stringent standards than formal pleadings drafted by lawyers”); see also Rothermich, supra note 154, at 2697 (noting that “if courts mistakenly believe that the ghostwritten pleading was drafted without legal assistance, they might apply an unwarranted degree of leniency to a pleading that was actually drafted with the assistance of counsel”). 157 Rothermich, supra note 154, at 2689 (“[Ghostwriting] would allow legal services offices to provide legal assistance to more individuals, potentially increasing access to justice for low- income clients.”).

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December 2013] BRENNAN LECTURE 123 unbundling nor court-provided access-to-justice measures result in outcomes as favorable as those obtained with full attorney representation.158 That may be the case. But where full representation is neither affordable nor feasible, these options may provide some assistance and access to those who need it.

D. Nonlawyer Solutions Any remedial approach must also examine structural reforms. We should seriously consider allowing trained nonlawyers to play a greater role. We see this being played out across the country as well. For example, over consistent opposition from its bar association, and in an effort to assist the thousands of unrepresented litigants appearing in Washington courts, the Washington Supreme Court recently adopted a rule authorizing limited- license legal technicians.159These technicians will have greater training and responsibility than paralegals but will not appear in court or negotiate with opposing parties on their clients’ behalf.160 Technicians may assist with court forms, inform clients of procedures and timelines, review and explain pleadings, and identify documents that may be needed in court.161Noting the objection that the rule posed a threat to the family law bar, the court explained that the basis of any regulatory scheme, including the court’s authority to regulate the practice of law, must be the public interest, and “[p]rotecting the monopoly status of attorneys in any practice area is not a legitimate objective.”162

158 D. James Greiner et al., The Limits of Unbundled Legal Assistance: A Randomized Study in a Massachusetts District Court and Prospects for the Future, 126 HARV. L. REV. 901, 908–09 (2013)(finding that outcomes were significantly better for clients with full representation than with unbundled legal services). 159 SeeEthanBronner, A Call for Drastic Changes in Educating New Lawyers, N.Y. TIMES, Feb. 11, 2013, at A11(noting that Washington’s limited license legal technician program—the first of its kind in the nation—will provide access to those who cannot afford lawyers and will regulate the unauthorized practice of law);Press Release,Wash. Courts, Supreme Court Adopts Rule Authorizing Non-Lawyers to Assist in Certain Civil Legal Matters (June 15, 2012), available at http://www.courts.wa.gov/newsinfo/?fa=newsinfo.internetdetail&newsid=2136 (describing the adoption process and substance of the Washington Supreme Court’s “Limited Practice Rule for Limited License Technicians”); Supreme Court Adopts Limited License Legal Technician Rule, WASH. STATE BAR ASS’N, http://www.wsba.org/News-and-Events/News/Supreme-Court-Adopts-Limited-License-Legal-Te chnician-Rule [hereinafter Supreme Court Adopts] (explaining the Limited License Legal Technician Rule and the legal profession’s role in its implementation). 160 See Press Release, Wash. Courts, supra note 159(noting some of the abilities of technicians). 161 Id. 162 In the Matter of the Adoption of New APR 28—Limited Practice Rule for Limited License Legal Technicians, Order No. 25700-A-1005, at 7 (Wash. 2012), available at http://www.courts.wa.gov/content/publicUpload/Press%20Releases/25700-A-1005.pdf.

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Washington is the first state to adopt such a rule,163 but it is not alone in this effort. California and New York are now following Washington’s lead and pursuing their own initiatives on nonlawyer assistance to increase access to justice.164 Other countries, most notably England, have for years successfully relied on nonlawyers to provide legal assistance.165 These solutions are not perfect and may open the door to abuses. For example, federal law has for decades authorized nonlawyer “bankruptcy petition preparers”to assist parties seeking bankruptcy protection.166 Although the preparers cannot provide legal advice or services, they can complete a bankruptcy petition on behalf of a debtor.167 But with recent changes in both the bankruptcy laws and the economy, federal bankruptcy courts have confronted allegations of preparers’ unscrupulous practices and dishonesty.168 We have also seen nonlawyer notary publics capitalizing on the use of the term “notario,” which in some countries signifies an individual who can perform official acts,169 as well as nonlawyer “immigration consultant[s],”who do more harm than good.170 Yet despite

163 Supreme Court Adopts, supra note 159. 164 See LauraErnde, State Bar to Look at Limited-Practice Licensing Program, CAL. ST. B.J. (Feb. 2013), http://www.calbarjournal.com/February2013/TopHeadlines/TH1.aspx (explaining that the State Bar Board of Trustees is exploring ways to increase public access to legal services and provide practice opportunities for unlicensed law school students and legal technicians, while also regulating the unauthorized practice of law); JonathanLippman, The State of the Judiciary 2013: “Let Justice Be Done,”N.Y. STATE UNIFIED COURT SYS., 13–14 (2013), http://www.nycourts.gov/ctapps/news/SOJ-2013.pdf(describing task force “to examine the role that appropriately trained and regulated nonlawyer advocates can play in providing out-of-court assistance in discrete areas such as housing, consumer credit and foreclosures”). 165 See Hadfield, supra note 65 (“The United Kingdom has a long history of allowing a wide variety of differently trained individuals and organizations [to] provide legal assistance, and studies show that the practice works very well.”). 166 See 11 U.S.C. § 110 (2012)(delineating permissible and impermissible activities of bankruptcy petition preparers and providing penalties and remedies for violations of these limits). 167 See id. (describing the limits, duties, and consequences of noncompliance for bankruptcy petition preparers); see also Bankruptcy Petition Preparers, U.S. DEP’T OF JUSTICE, http://www.justice.gov/ust/r05/docs/general/guidelines/bank_pet_prep.pdf (last visited Oct. 11, 2013) (explaining to debtors the role and limits of bankruptcy petition preparers). 168 See Eileen Ambrose, DIY, BPP are Potential Pitfalls in Bankruptcy, BALTIMORE SUN, June 24, 2012, at C1 (explaining difficulties encountered by bankruptcy petition preparer clients in Maryland); Increased Use of Bankruptcy Petition Preparers Raises Concerns, THIRD BRANCH NEWS (June 18, 2012), http://news.uscourts.gov/increased-use-bankruptcy-petition-preparers-raises-concerns (describing an increase in abuses, including unauthorized practice of law and collecting higher preparation fees than that permitted by bankruptcy courts). 169 See Ernde, supra note 164 (explaining that there has been confusion between professionals in other countries called “notarios”and notary publics in the United States, who are more limited in their ability to provide legal assistance). 170 See, e.g., Consumer Protection Legislation: The “White Paper,”NEV. LAWYER, Mar. 1999, at 9, 9 (describing Amigo Services, an immigration consulting firm that filed “frivolous, fraudulent and meritless immigration documents,” in one instance, “fail[ing] to include the entire family in an Application for Political Asylum, thus precluding the possibility of other family

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December 2013] BRENNAN LECTURE 125 these problems, we must consider whether nonlawyer assistants provide a more attractive option than the status quo. Allowing nonlawyers to take on a greater role would require states to relax the prohibitions on the unauthorized practice of law, a change that has been on the horizon for some time. Fourteen years ago, when Quicken introduced its Family Lawyer software, a program that provided different legal forms and instructions on how to complete them, Texas’s Unauthorized Practice of Law Committee sought to enjoin sales of the product in Texas.171 A federal district court granted the injunction,172 and if not for the Legislature’s quick action in amending the statutory definition of the “practice of law,”173sales might be illegal today. Historically, our profession has resisted such change. The ABA’s Model Rules of Professional Conduct, adopted in 1983, prohibit nonlawyer participation in legal services. These types of restrictions have been in place since at least 1928, when the ABA first adopted Canons 33, 34, and 35, limiting partnerships, fee splitting, and employment relationships between lawyers and nonlawyers.174 The stated rationale is that these restrictions “protect the lawyer’s professional independence of judgment.”175 In the 1990s, the ABA appointed a Commission to once again consider the wisdom of this prohibition. The Commission was instructed to focus on serving the public interest rather than the economic interests of attorneys.176 After study, the Commission recommended that lawyers and nonlawyers be permitted to form partnerships and to share fees, provided certain ethical considerations were satisfied.177 After just an hour of debate, the ABA House of Delegates rejected the recommendation and instead reaffirmed the existing restrictions, emphasizing that the rules members being able to legalize their status in the United States and precluding the actual applicant from being able to legalize his status in the United States”). 171 Unauthorized Practice of Law Comm. v. Parsons Tech., Inc., No. Civ.A. 3:97CV–2859H, 1999 WL 47235, at *1, *3 (N.D. Tex. Jan. 22, 1999), vacated, 179 F.3d 956 (5th Cir. 1999) (per curiam) (vacating judgment in light of statutory changes). 172 Id. at *10. 173 See TEX. GOV’T CODE ANN. § 81.101 (West 2013) (defining the term to exclude“the design, creation, publication, distribution, display, or sale, including . . . by means of an Internet web site, of written materials, books, forms, computer software, or similar products if the products clearly and conspicuously state that the products are not a substitute for the advice of an attorney”). 174 George C. Harris & Derek F. Foran, The Ethics of Middle-Class Access to Legal Services and What We Can Learn from the Medical Profession’s Shift to a Corporate Paradigm, 70 FORDHAM L. REV. 775, 779 (2001) (describing ABA Canons 33, 34, and 35, which codified ABA ethics committee opinions). 175 Id. at 784(quoting AM. BAR ASS’N CTR. FOR PROF’L RESPONSIBILITY, THE LEGISLATIVE HISTORY OF THE MODEL RULES OF PROFESSIONAL CONDUCT: THEIR DEVELOPMENT IN THE ABA HOUSE OF DELEGATES 164 (1987)). 176 Id. at 785. 177 Id.

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governing attorney conduct are intended to safeguard the public interest.178 Time and again, the profession has rejected reform efforts in the name of protecting core values. But as commentators have asked: “[W]hat good are the profession’s core values to those who do not make it through the lawyer’s office door?”179Many of these reforms echo those experienced by the medical profession.180 Just as that model has moved away from services provided by physicians and toward those given by physician’s assistants and nurse practitioners, we could similarly rely more on trained nonlawyers to provide many of the services for which a lawyer is now required. Perhaps, “[a]s the medical profession has learned, it may be necessary to live with the ethical tension of encroachments on professional autonomy in order to make professional services accessible to a wider class of society.”181

E. Legal Education We should also consider reforming our system of educating lawyers. Law school applications have dropped,182 recent graduates cannot find jobs, and law students face enormous debt loads that prevent them from charging rates that would make their services affordable for middle- and lower- income clients.183 There have been unheeded calls to reduce law school from three years to two. Some, such as Jim Chen, former dean of the University of Louisville Brandeis School of Law, suggest that tenured professors may be partially to blame.184 Chen asserts that professors would block such change because it may harm their economic self-interest, and that the push for

178 Id. at 786–87. 179 Id. at 807. 180 See id.at 777 (noting that “the medical profession has faced, and continues to struggle with, similar tensions between affordability and professionalism,” precipitating its move “from a traditional model of fee-for-service by independent doctors to the currently predominant model of managed care by corporate medical service providers”). 181 Id. at 845. 182 EthanBronner, Law Schools’ Applications Fall as Costs Rise and Jobs Are Cut, N.Y. TIMES, Jan. 31, 2013, at A1 (describing a two-year thirty-eight percent decrease in law school applications and noting that “the decline is creating what many see as a cultural shift”). 183 See id. (observing that debt load for private law school graduates was $125,000 in 2011, up from $70,000 in 2001, and describing how technological advances have eliminated some lawyer jobs); see also Kendall Coffey, Underserved Middle Class Could Sustain Underemployed Law Graduates, NAT’L L.J. ONLINE (Aug. 15, 2012), http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202567602357&Underserved_middle_class_ could_sustain_underemployed_law_graduates (“Ironically, while thousands of new law graduates fret about the chronic joblessness that awaits them, tens of millions of Americans need attorneys but cannot afford them.”). 184 Bronner, supra note 159.

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December 2013] BRENNAN LECTURE 127 change must therefore come from state supreme courts.185 But this is not always the case, as Professor Samuel Estreicher’s example proves. He argues convincingly that law students should be eligible to take the bar exam after two years, rather than three.186 He notes that, in the 1970s, there was a push toward a two-year professional law degree. Although the idea had the support of Chief Justice Warren E. Burger and ABA president Justin Stanley, the movement ended after some of the nation’s most prestigious law schools opposed it.187 As one professor noted, the idea “was killed for very bad reasons that have more to do with institutional tranquility than the public welfare.”188 Professor Estreicher rightly questions whether the interest in “institutional tranquility”is enough to justify a legal mandate of an additional year of law school, with its accompanying debt and impact on the profession and the legal services provided to consumers.189 Law schools are increasingly revamping their third year curriculum, as New York University recently did, to include “a focus on foreign study and specialized concentrations.”190Other schools have dropped the standard third-year course load in exchange for a combination of clinics and outside internships.191 One dean has called for a two-year “residency”program for new graduates, much like those undertaken by recent medical school graduates.192 Programs like these promise to make legal education more affordable and lawyers’ services more accessible. Other reforms are likely forthcoming.

CONCLUSION The phrase “access to justice”is often thought of in terms of providing legal services to the poor. It is that, to be sure, but an accessible justice system requires that all segments of our society be able to utilize it. Viewed this way, our remedies must be more expansive as well.193 Just as no single

185 Id. 186 SamuelEstreicher, The Roosevelt-Cardozo Way: The Case for Bar Eligibility After Two Years of Law School,15 N.Y.U. J. LEGIS. & PUB. POL’Y 599, 606–10 (2012); see also Daniel B. Rodriguez & SamuelEstreicher, Op-Ed., Make Law Schools Earn a Third Year, N.Y. TIMES, Jan. 18, 2013, at A27 (“[A] two-year option would allow many newly minted lawyers to pursue careers in the public interest or to work at smaller firms that serve lower- or average-income Americans, thereby fulfilling a largely unmet need”). 187 Estreicher, supra note 186, at 604–05. 188 Id. at 604 n.25 (quoting PrebleStolz, The Two-Year Law School: The Day the Music Died, 25 J. LEGAL EDUC. 37, 40 (1973)). 189 See id. at 609. 190 PeterLattman, N.Y.U. Law Plans Overhaul of Students’ Third Year, N.Y. TIMES, Oct. 17, 2012, at B1. 191 See id. (describing program at Washington and Lee University School of Law). 192 Farmer, supra note 48. 193 See Lawrence M. Friedman, Access to Justice: Some Historical Comments, 37 FORDHAM

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issue created the barriers, there is no unitary solution. On February 24, 1836, Texas forces were under siege from the Mexican army at the battle of the Alamo. William Barret Travis, the commander of the Texian soldiers, wrote a desperate plea for help. Addressed to “the People of Texas and All Americans in the World,” he asked “in the name of Liberty, of patriotism & everything dear to the American character, to come to our aid, with all dispatch.”He vowed never to surrender or retreat, promising “victory or [d]eath.”194 While not as dire as the situation faced by Commander Travis, we too are at a crossroads. Fixing any of our justice system’s problems necessitates a fundamental shift in our thinking. “[I]n the name of Liberty, of patriotism & everything dear to the American character,”the legal profession must adapt to evolving procedures and times and must embrace change, even if that change sometimes comes at our own expense. Too often, when faced with issues that might adversely affect the bottom line, our profession acts less like a profession and more like a trade.195 Courts must step in because those who lack access to justice are a constituency without a voice.196 Am I suggesting that lawyers are the root of our system’s ills? Not at all. But when vast segments of our society are unable to utilize the legal system, we must examine whether we should change the way legal services are delivered and how courts can create more accessible systems. If resistance to such change stems from inertia, “institutional tranquility,”or economic self-interest, we are not fulfilling our pledge. A two-tiered justice system denies “liberty and justice for all.” We

URB. L.J. 3, 15 (2010) (noting that “access to justice is a complex issue”and that “[a] solution to the ‘problem’ depends on how the problem is defined and what policy goals one wishes to reach”). 194 Travis Pens His Famous Letter From the Alamo, TEX. ST. HISTORICAL ASS’N, http://www.tshaonline.org/day-by-day/31352(last visited Oct. 11, 2013). 195 See, e.g., Harris & Foran, supra note 174, at 804 (“[M]any lawyers traditionally serving middle-class consumers perceive the Internet, with its proliferation of legal self-help resources, as well as self-help computer software, as the enemy.”). 196 SeeBARBARA RODRIGUEZ MUNDELL & WALLACE B. JEFFERSON,EXECUTIVE SESSION FOR STATE COURT LEADERS IN THE 21ST CENTURY, HERDING LIONS: SHARED LEADERSHIP OF STATE TRIAL COURTS 1 (2008), available at http://www.ncsc.org/services-and-experts/court- leadership/~/media/files/pdf/services%20and%20experts/areas%20of%20expertise/jefferson- mundell-herding-lions-shared-leadership-of-state-trial-courts.ashx(“[A] state supreme court must ensure access to, and the availability of, essential court services.”); see also Hadfield, supra note 65 (“Solving the problem requires lawyers—especially those on the bench who bear the ultimate responsibility for regulating the profession—to share the field with other, less-expensive, non-JD professionals and nonlawyer dominated organizations who can provide perfectly adequate legal help in many cases.”); Paul D. Paton, Multidisciplinary Practice Redux: Globalization, Core Values, and Reviving the MDP Debate in America, 78 FORDHAM L. REV. 2193, 2243 (2010) (noting that the bar’s failure “to appropriately and credibly consider the public interest” could invite “a legislative response that not only implements rules with which the profession itself is not satisfied, but us[es] that to justify further encroachments on lawyer self-regulation”).

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December 2013] BRENNAN LECTURE 129 can do much better. Let’s marshal our forces. Or, as we say in Texas: Remember the Alamo!

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Financial Influences on the Judiciary

Steven M. Puiszis

Hinshaw & Culbertson LLP

222 North LaSalle Street, Suite 300 Chicago, IL 60601 (312) 704-3243 (312) 704-3001 [fax] [email protected] Steven M. Puiszis is a partner with Hinshaw & Culbertson LLP in Chicago. Mr. Puiszis is the secretary-treasurer of DRI, serves on the DRI Board of Directors, and is a past chair of the DRI Judicial Task Force. He was the editor of DRI’s whitepaper, Without Fear or Favor in 2011: A New Decade of Challenges to Judicial Independence and Accountability. Mr. Puiszis has spoken and written about the need for lawyers to protect judicial independence and to support full funding of our state court systems. His publications include Illinois Governmental Tort and Section 1983 Civil Rights Lia- bility (Matthew Bender, Third Edition). Mr. Puiszis received his J.D. from Loyola University, Chicago. He is a fellow of the American Bar Foundation and is a past president of the Illinois Association of Defense Trial Counsel. Mr. Puiszis serves as Hin- shaw’s deputy general counsel, which received U.S. News & World Reports 2014 Best Firm Award for Ethics and Professional Responsibility. Financial Influences on the Judiciary

Table of Contents Presentation...... 71 Attachment...... 89

Financial Influences on the Judiciary ■ Puiszis ■ 69

Presentation

THE ENDLESS JUDICIAL SELECTION DEBATE AND..., 21 Geo. J. Legal...

21 Geo. J. Legal Ethics 1259

Georgetown Journal of Legal Ethics Fall, 2008

Sandra Day O’Connor Project on the State of the Judiciary

THE ENDLESS JUDICIAL SELECTION DEBATE AND WHY IT MATTERS FOR JUDICIAL INDEPENDENCE

Charles Gardner Geyha1

In this overview, I begin by describing the five different systems of state judicial selection that have evolved out of a perennial struggle to strike an optimal balance between judicial independence and judicial accountability. I then explore recent developments that have intensified that struggle before analyzing, with reference to available research, how different selection systems counter or accommodate such developments. My purpose here is not to write (another) position piece. Rather, my purpose is to step back and contextualize disputes over judicial selection with reference to the independence and accountability issues that animate them, and to isolate what we know and don’t know about the assumptions that underlie the arguments of the disputants, so as to better frame future study and debate.

I. JUDICIAL INDEPENDENCE, ACCOUNTABILITY AND SELECTION: THE PERENNIAL STRUGGLE

Within the legal community judicial independence is understood not as an intrinsic good or an end in itself, but as a means to achieve other ends. It is thought that if judges are independent--if they are insulated from political and other controls that could undermine their impartial judgment--they will be better able to uphold the rule of law, preserve the separation of powers, and promote due process of law.1 Scholars, judges and lawyers often acknowledge that judicial independence has institutional and decisional dimensions. Institutional independence concerns the capacity of the judiciary as a separate branch of government to resist encroachments from the political branches and thereby preserve the separation of powers. Decisional independence, in contrast, concerns the capacity of individual judges to decide cases without threats or intimidation that could interfere with their capacity to uphold the rule of law.2

Properly understood, then, judicial independence is circumscribed by the *1260 purposes it serves: Decisional independence, for example, does not mean freedom from all external constraints, but only those constraints that interfere with a judge’s capacity to uphold the rule of law. Indeed, some forms of independence from decisional constraint, such as the freedom to decide cases for the benefit of friends or in exchange for bribes, are antithetical to the rule of law values that judicial independence is supposed to further. And so, if judicial independence is to achieve its goals, it must operate within specified constraints. It must, in other words, be tempered by judicial accountability.

Like judicial independence, judicial accountability is not an end in itself. It too serves other ends: To promote the rule of law, institutional responsibility, and public confidence in the courts. And like judicial independence, judicial accountability has multiple forms. Institutional accountability mechanisms hold judges answerable collectively for their conduct as a separate branch of government (e.g., by subjecting court budgets to legislative oversight). Behavioral accountability mechanisms hold individual judges to account for their conduct on and off the bench (e.g., by subjecting them to discipline for being abusive to litigants or accepting inappropriate gifts from lawyers who appear before them). And decisional accountability makes judges answerable for their judicial rulings (e.g., by subjecting their decisions to appellate review).3 As to decisional accountability, however, suitable mechanisms are ideally limited to those that promote the rule of law by correcting judicial error. Mechanisms that go further, and subject judges to threats or controls, could cause judges to disregard the law and implement the preferences of those who threaten or control them, to the detriment if not the demise of decisional independence.

Accepting for the moment the premises of the legal model (I revisit those premises later), the perennial policy struggle is to strike an optimal balance between judicial independence and accountability, to ensure that judges are independent enough to © 2014 Thomson Reuters. No claim to original U.S. Government Works. 1

Financial Influences on the Judiciary ■ Puiszis ■ 71 THE ENDLESS JUDICIAL SELECTION DEBATE AND..., 21 Geo. J. Legal... follow the facts and law without fear or favor, but not so independent as to disregard the facts or law to the detriment of the rule of law and public confidence in the courts. The American Bar Association’s Model Code of Judicial Conduct (“Model Code”), some variation of which has been adopted by almost every state supreme court, seeks to structure judicial conduct to preserve this balance. The 2007 Code tells judges that they “shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary”;4 “shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially”;5 “shall not be swayed by public clamor or fear of criticism;”6 “shall not permit family, social, political, *1261 financial, or other interests or relationships to influence the judge’s judicial conduct or judgment”;7 and “shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge.”8

In the context of judicial selection, the struggle to balance independence and accountability has played itself out over the course of more than two centuries, as five distinct methods of selecting judges--each striking the balance in different ways--have vied for preeminence. In the fledgling states, all judges were selected by one of two methods: Gubernatorial appointment with legislative confirmation (five states) or legislative appointment (eight states).9 The colonial courts had been unhappily dependent on the crown, and the new states were committed to curbing their judiciaries’ dependence on the executive branch. This is not to say, however, that the new states were committed to an independent judiciary. Several states subjected their judges to a variety of legislative branch controls, including re-appointment, which led to a series of independence-threatening confrontations with state legislatures during the 1780s that troubled the framers of the U.S. Constitution enough to embed in Article III tenure and salary protections for federal judges.10

During the Jacksonian era of the 1820s and 1830s, populist calls for judicial accountability initiated a movement to select judges via a third method: Partisan judicial elections. Although the early impetus for partisan judicial elections may have been a desire for greater accountability, the partisan election movement did not take hold until after the Jacksonians lost influence, led by reformers who argued that elected judges who derived their authority from the people would be more independent-minded than hand-picked friends of governors, or jurists subject to the beck and call of legislatures. Indeed, Caleb Nelson found that the impetus of the judicial election movement was a desire to promote judicial independence from the political branches, rather than to increase democratic accountability for judicial decisions.11 Mississippi broke the ice in 1832, and by 1909, thirty-five states either entered the Union with judiciaries selected by partisan election or had converted to partisan elections from appointive *1262 systems.12

“By the early twentieth century,” Steven Croley writes, “elective judiciaries were increasingly viewed as plagued by incompetence and corruption.”13 During the Progressive era, worries that partisan elections led to the selection of less than capable and qualified judges who were beholden to party bosses culminated in a fourth form of judicial selection: The nonpartisan election. By 1930, eleven new states had adopted non-partisan elections as the selection method for their judiciaries.14

In the minds of some, however, non-partisan elections left voters with precious little information upon which to cast an informed ballot, which led to the selection of less capable and qualified judges. In the minds of others, contested elections--partisan or not--failed to divorce judges sufficiently from the political process.15 In 1913, a fifth method of judicial selection was devised: A “merit selection” system, in which judges were appointed by the governor from a pool of candidates whose qualifications had been reviewed and approved by an independent commission.16 Judges so appointed would then run unopposed later in periodic retention elections, where voters would decide whether the judge in question should be retained for another term. Missouri adopted the first merit selection plan in 1940. By 1989, twenty-three states had commission-based appointive systems (with and without retention elections) to select some or all of their judges.

More recently, the merit selection movement has stalled. Constitutional amendments to install merit selection systems in Florida, Michigan, Ohio, and South Dakota have been rejected by voters. Reformers in other jurisdictions have struggled unsuccessfully to place merit selection proposals on their ballots. And in some merit selection states, there have been calls for a return to contested elections.17

Meanwhile, non-partisan elections have enjoyed a renaissance. Arkansas, Florida, Georgia, Kentucky, Louisiana, and North Carolina moved from partisan to non-partisan election systems in the past thirty years.18 And in 2003, the American Bar Association retreated from its previous position of exclusive support for merit selection to a more nuanced series of positions, one being that *1263 “[f]or states that retain contested judicial elections as a means to select or reselect their judges, the

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Commission recommends that all such elections be non-partisan and conducted in a non-partisan manner.”19

Today, the American Judicature Society reports20 that at the supreme court level, three states select judges by gubernatorial appointment,21 two by legislative appointment, eight by partisan election, thirteen by non-partisan election, and twenty-five by merit selection.22 At the intermediate appellate level, two states select judges by gubernatorial appointment,23 two by legislative appointment, six by partisan election, eleven by nonpartisan election, and eighteen by merit selection.24 Finally, at the trial level, two states select judges by gubernatorial appointment,25 two by legislative appointment, nine by partisan election, eighteen by non partisan election, seventeen by merit selection,26 and four by a combination of methods. It should be added that, even in states that employ contested elections, judges are often initially appointed by governors to fill the unexpired terms of retiring incumbents.

II. RECENT DEVELOPMENTS: THE PERENNIAL STRUGGLE INTENSIFIED

Each of the five methods of judicial selection described above had its heyday at a different point in American history. Consensus on the optimal method of judicial selection has been elusive. Many have asserted that this is because there is no perfect method of judicial selection, or, more harshly, because there is no good method of judicial selection.27 A more charitable explanation may be that *1264 the objective of a “good” selection system--an optimal balance between judicial independence and accountability--is an ever-moving target that generates perennial calls for reform. In recent years, the reform engine has been fueled by a series of developments that have “politicized” state judicial elections in arguably unprecedented ways.

A. HEIGHTENED TWO-PARTY COMPETITION

Partisan judicial elections can be relatively sleepy affairs in states where a single political party is predominant and the outcome of judicial races is all but assured. Conversely, as Alan Tarr observes, “in states in which party competition is intense and in which parties establish clear ideological identities, the intensity tends to spill over into judicial elections.”28 In recent years, significant two-party competition has become commonplace in states and regions that traditionally were within the control of only one party: One of the most dramatic changes during the latter half of the twentieth century was the spread of two party competition throughout the nation. Many states that at one time were dominated by a single party, particularly in the South and New England, now regularly conduct highly competitive elections.29 Studies of judicial reform in North Carolina and Texas link recent selection reform efforts there to the intensification of two-party competition for judicial office.30

B. THE CHANGING NATURE OF SUPREME COURT DOCKETS

As caseloads increased throughout the twentieth century, states sought to relieve docket pressures on their supreme courts by establishing intermediate courts of appeal and making their supreme courts’ appellate jurisdiction discretionary. Armed with the discretion to set their own agendas, supreme courts have increasingly allowed the intermediate courts of appeals to have the final word in garden-variety disputes where appellate review is limited to correcting trial court errors, and confined their dockets to more controversial cases in which *1265 the law is unclear and their primary mission is to “say what the law is.” The net effect has been to highlight the policy-making role that state supreme courts play when filling gaps in constitutional and statutory law and making common law.31

In a related development, Emily Van Tassel explains that “the politicization of state constitutional decision-making coincides with the ‘new Federalism’ of the Reagan era and the willingness of many state appellate courts to look to their own constitutions for guidance in many areas of law previously left to the federal constitution.”32 That, in turn, has served to “raise the profile of state court judges and make control over state judgeships seem more significant to a greater range of interest groups than in the recent past.”33 To the extent that judges are perceived as making constitutional policy when called upon to interpret their constitutions in new and different ways, it may blur the distinction between judges and legislators in the public

Financial Influences on the Judiciary ■ Puiszis ■ 73 THE ENDLESS JUDICIAL SELECTION DEBATE AND..., 21 Geo. J. Legal... mind and intensify calls to hold judges politically accountable for their decisions.

C. INCREASED SPENDING IN JUDICIAL RACES

As two-party competition has intensified and the political profile of state supreme courts has elevated, campaign spending in judicial races has increased. Average campaign spending in contested supreme court races has increased from $364,348 in 1990, to $892,755 in 2004.34 In 2000, judicial candidates in supreme court races raised $45 million;35 in 2002, they raised $29 million;36 and in 2004, they raised $42 million.37 While these numbers appear to vary wildly, when “outlier” races in Alabama, Illinois, and West Virginia are excluded, spending in the fourteen remaining states that held supreme court elections in 2004 increased by 163% from 2002, and in 2002, spending increased by 167% from 2000.38 Between 2004 and 2006, average spending on advertising in supreme court races increased from $1.5 million to $1.6 million; in that time, the median amount *1266 raised increased from $201,623 to $243,910.39

When it comes to fundraising, the focus of attention has been on supreme court races, where competition for judicial office has been stiffest. Even so, a survey of over 2400 judges conducted in 2001 found that 45% of lower court judges felt under pressure to raise money for their campaigns during election years, as compared to 36% of high court judges.40 In the 2005-2006 election cycle, for example, trial lawyers and corporate interests in a southern Illinois race combined to give more than $3.3 million to two candidates for a seat on the state court of appeals, quadrupling the state record. Madison County witnessed a $500,000 trial court campaign, and a Missouri trial court judge was defeated after an out-of-state group poured $175,000 into a campaign to defeat him.

D. INCREASED INTEREST GROUP INVOLVEMENT IN JUDICIAL CAMPAIGNS

Coinciding with the advent of big league spending in judicial campaigns and with heightened two-party competition is the advent of big league interest group involvement. Such involvement often comes in the form of direct contributions to judicial candidates and independently organized campaigns in support of or opposition to the candidates. The lion’s share of interest group spending has been on a cluster of issues, traveling under the umbrella of “tort reform,” that concern judicial rulings on issues relating to punitive damages, products liability, medical malpractice, and insurance liability. As Deborah Goldberg explains, “the tort wars have pitted the plaintiffs’ bar and labor unions, aligned with Democratic candidates, against the defense bar and business, aligned with Republicans.”41 Thus, in 2006, the two highest sources of contributions were business interests and lawyers, with 44% of all funds donated by the former and 21% by the latter.42 Outside of groups devoted to the tort reform issue, there have been other interest groups that have actively sought to defeat incumbents (sometimes successfully) because of an opinion a judge wrote or joined on such issues as capital punishment, criminal sentencing, abortion, gay rights, education funding, and water rights.43

E. INCREASED NEGATIVE TENOR OF JUDICIAL CAMPAIGNS

As James Gibson notes, “the use of attack ads in judicial elections is a *1267 relatively new phenomenon.”44 In 2004 and 2006, approximately 20% of all ads were negative.45 Increased spending in judicial campaigns and increased interest group involvement has brought a greater emphasis on negative advertising. In a 2001 poll of judges, 54% of trial judges and 54% of supreme court justices reported that the conduct and tone of judicial campaigns had gotten worse in the preceding five years.46 Until quite recently, interest groups and political parties were responsible for the lion’s share of negative television advertising--almost 90% as of 2004; but in 2006, the candidates themselves sponsored 60% of the negative advertising.47

F. ETHICAL LIMITS ON CAMPAIGN CONDUCT AFTER REPUBLICAN PARTY OF MINNESOTA V. WHITE

Since the 1970s, codes of judicial conduct have imposed significant restrictions on judicial speech and association during judicial campaigns. First, judges have been subject to restrictions on what they can say about issues that may come before them as judges: The 1972 Model Code of Judicial Conduct forbade judges from announcing their positions on disputed issues (the “announce clause”),48 while the 1990 and 2007 Model Codes prohibit judicial candidates from making pledges, promises or commitments.49 Second, the Codes restrict a judge’s political activities: For example, judges must not serve as officers in, contribute to or make speeches on behalf of political organizations; they must not publicly oppose or endorse other © 2014 Thomson Reuters. No claim to original U.S. Government Works. 4

74 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 THE ENDLESS JUDICIAL SELECTION DEBATE AND..., 21 Geo. J. Legal... candidates; and they must not solicit campaign funds other than though their campaign committees.50 By limiting what judges can say and do in election campaigns, codes of conduct seek to prevent judicial candidates from becoming fully embroiled in the political process and from turning judicial races into referenda on their express or implied plans to decide future cases in specific ways.

In Republican Party of Minnesota v. White, the United States Supreme Court invalidated the announce clause, holding that judicial candidates have a First Amendment right to state their views on issues that may come before them later, as judges.51 In the aftermath of White, the American Bar Association made modest adjustments to the Model Code in 2003: it deleted a clause that subjected judges to discipline for appearing to make commitments (but made apparent *1268 commitments a new basis for disqualification), and retained the general prohibitions on pledges, promises, commitments, and political activities.52

Beginning in 2003, the ABA’s Joint Commission to Revise the Model Code of Judicial Conduct revisited the Model Code’s restrictions on campaign speech and conduct, as part of a larger project to revise the entire Code. The Commission considered three possible courses of action.53 First, it considered embracing the spirit of White by deregulating campaign speech and conduct generally, as North Carolina had done. Second, it considered the midrange option of retooling the political activities canon to accommodate some specific post-White rulings of the lower courts, which would require the Commission to eliminate several restrictions on political activities and narrow significantly, if not eliminate the pledges, promises, and commitments clause. Third, it considered the conservative approach of limiting the reach of White to its holding, and staying the course pending further clarification of White from the Supreme Court.

A majority of the Commission remained concerned that the impact of White on judicial campaigns was deleterious, and was reluctant to deregulate campaign speech and conduct beyond what was required by the letter of the Supreme Court’s holding. After lengthy deliberations spanning nearly four years, the Commission effectively chose the third option described above, retaining existing restrictions on campaign speech and conduct in the political activities canon. Instead of deregulating campaign speech, the Commission focused its efforts on restructuring new Canon 4 (former Canon 5) to improve clarity and specificity, as the ABA’s Report to the House of Delegates explained: Much of the material in Canon 5 was retained, but was reorganized along several axes. The reorganized Canon 4 differentiates more clearly between sitting judges who are and are not also judicial candidates and nonjudges who become candidates. Canon 4 continues to differentiate between judicial candidates running in public elections and those seeking appointment, and, within the former category, it further differentiates between partisan, nonpartisan, and retention elections.54

In the aftermath of White, judicial candidates have challenged remaining restrictions on their campaign speech and conduct in the lower courts, and while the results have been somewhat mixed, the trend has favored the challengers. Several courts have invalidated the pledges and promises clause, while others *1269 have struck down restrictions on political activities.55 The United States Court of Appeals for the Eighth Circuit, revisiting other issues presented by the White case on remand from the Supreme Court, held that Minnesota could not discipline judicial candidates for engaging in partisan activities (notwithstanding Minnesota’s purported interest in preserving the nonpartisan character of its judicial elections), or bypassing their campaign committees and soliciting funds directly from groups.56

Since 2002, when White was decided, interest groups on the political left and right have capitalized on the decision by submitting questionnaires to the candidates that solicit the candidates’ views on a range of issues likely to come before them as judges, which the candidates ignore at their peril.57 Indeed, some interest groups have been explicit about supporting only those candidates that respond.58

III. THE IMPLICATIONS OF RECENT DEVELOPMENTS FOR JUDICIAL SELECTION REFORM

If Professor Roy Schotland had licensed his characterization of judicial races as “noisier, nastier and costlier” when he made the statement in the 1980s, the royalties would have made him a rich man today. Accompanying the noise, the nastiness, and the cost is a fundamental shift in the justification for elected judiciaries: Judicial elections were originally introduced primarily to promote judicial independence by liberating judges from the control of governors and legislators,59 but they have since morphed into tools that serve primarily to promote judicial accountability. There seems to be a general consensus that the recent developments described in the preceding section are making judicial elections look and feel more like conventional © 2014 Thomson Reuters. No claim to original U.S. Government Works. 5

Financial Influences on the Judiciary ■ Puiszis ■ 75 THE ENDLESS JUDICIAL SELECTION DEBATE AND..., 21 Geo. J. Legal... political branch races, in the sense of being more competitive and costly, with more interest groups taking sides in more acrimonious contests, and more candidates taking positions on the often policy-laden issues that the candidates will be called upon to resolve as office-holders. Where the consensus breaks down is as to whether these developments are welcome and which judicial selection system is best suited to counter or accommodate them.

*1270 A. PARTISAN ELECTIONS

Contemporary proponents of partisan judicial elections proceed from the premise that, in a democratic republic, voters should choose the public officials who govern them and should be able to hold them accountable for their performance in office. Underlying this premise is the general assumption that judges are not significantly different from other public officials, or are not different in ways that warrant a different system of selection. A related assumption is that voters in judicial and political branch races are comparably motivated and equipped to distinguish good candidates from bad--or at least that voters in judicial races are not so unmotivated and ill-equipped as to undermine the legitimacy of the choices they make.

In an article I wrote several years ago, I questioned whether voters in judicial elections were adequately motivated and informed to hold judges accountable in a meaningful way, by pointing to data showing that a substantial majority of the public did not vote in judicial races and was unfamiliar with the candidates.60 Recent research suggests that my concern was well-founded in traditional, less competitive races. Available data confirms an often substantial “roll-off” in judicial races, in which voters who come to the polls vote in executive and legislative branch races but not in judicial.61 The roll-off is commonly attributed to a lack of information about the candidates,62 and indeed, in a poll of American voters conducted in 2001, 73% reported that they had only some or a little information about judicial candidates, while 14% reported having none.63 In their study of judicial elections in the news, Brian Schaffner and Jennifer Segal Diascro conclude that “we should not be surprised to find citizens lacking information about judicial races” because “citizens turning to newspapers for information on state supreme court campaigns will find a dearth of coverage on these contests.”64

It can be argued, however, that more competitive judicial races, particularly in a post-White environment, are increasing voter interest and information levels enough to hold judges meaningfully accountable.65 In a comparison between two Ohio Supreme Court races, Laurence Baum and David Klein found that the voter *1271 roll-off rate was twice as high for the low visibility race as for the hotly contested one (although they also found that in the hotly contested race, voters acquired only a slender grasp of the issues at stake).66 Melinda Gann Hall observes that “without the excitement generated by hard-fought campaigns from contending candidates, information upon which to cast votes is poor, and voters are disinterested and unmotivated to participate.”67 Now that judicial elections have become noisier, nastier and costlier, we have more challengers and more defeated incumbents, leading Hall to conclude that “when we consider tangible indicators of electoral accountability, we see that, under most situations, supreme court elections perform quite well, particularly in the last decade or so.”68 Rachel Caulfield found that in the post-White era, states that have deregulated judicial speech the most “are seeing a change in how candidates promote themselves and how they attack their opponents,” leading her to conclude that “it is entirely possible that judicial candidates in these states will increasingly rely on the ability to distinguish themselves from their opponents based on controversial issue positions.”69 Schaffner & Diascro concur that after White, “candidates may be more likely to speak out on a wider array of topics during campaigns, a dynamic that would produce more news for reporters to cover,” which they view as a welcome development “if judicial elections are to compel accountability in the judiciary.”70

Recent data thus reveal that the brave new world of expensive, high-profile, hotly contested judicial races creates greater voter interest, puts incumbents at higher risk of defeat, and to that extent promotes “accountability”--in an unvarnished sense of the term. Hall is quite explicit about the kind of accountability that judicial elections facilitate: Electoral competition enhances the ability of voters to voice disapproval of incumbents and remove unpopular ones, thereby bringing the judiciary better in line with citizen preferences. Moreover, competition serves to structure the decisions of judges once on the bench when judges’ preferences are inconsistent with those of their constituencies.71

And since competition is the most intense in partisan races, the argument concludes, it is in partisan races that judicial accountability of this kind will be *1272 promoted most effectively.

76 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 THE ENDLESS JUDICIAL SELECTION DEBATE AND..., 21 Geo. J. Legal... significant segment of the political science community believe, independent judges are essentially unconstrained policymakers who decide cases by acting on their personal “preferences” or “attitudes,” then the answer would seem to be yes, because elections will produce “public policies that better represent the citizenry” by “creating incentives for judges to pay attention to citizen preferences when deciding highly visible and publicly salient issues.”72

If, on the other hand, as the mainstream legal community believes, independent judges do their best to follow “the law,” flexibly defined (and consistent with the legal model described at the beginning of this paper), then the answer is presumably no, because elections create incentives for judges to set the law to one side and “pay attention to citizen preferences” when deciding cases. Indeed, the judge who openly defers to the electorate’s preferences when deciding cases exposes herself to discipline and removal for violating multiple rules in the Model Code of Judicial Conduct: The duty not to be swayed by public clamor or fear of criticism; the duty to uphold and apply the law and perform all duties of judicial office impartially; and the duty to act at all times in a manner than promotes public confidence in the independence and impartiality of the judiciary.73

The “attitudinal model” of judicial decision-making74 that drives the thinking of many political scientists is only now beginning to be challenged in a serious way by scholars within the legal community.75 I cannot do that debate justice here; suffice it to say, however, that its implications for judicial selection are considerable.

B. NONPARTISAN ELECTIONS

Devotees of non-partisan elections proceed from the assumption that judges are different from other elected officials in ways that justify a different selection process: Whereas governors and legislators may follow partisan agendas, judges must follow the law. Those who favor non-partisan elections worry that recent politicization of judicial races has made “politicians” of judges, whose election increasingly turns on their currying favor with contributors, interest groups and voters by signaling in advance how they are likely to rule on hot-button legal issues that may come before their courts. They argue, however, that the worst *1273 excesses have occurred in partisan election states, where judicial candidates are, by definition, partisans and where competition for judicial office has been most intense.

Data confirm that partisan races are, on average, more heated than nonpartisan races. The spending difference between partisan and non-partisan races is stark: between 1990 and 2004, average spending in contested non-partisan elections was $549,160, as compared to $885,177 in partisan races.76 Overall, the percentage of supreme court races in which the incumbent ran unopposed has been 16.9% higher in nonpartisan contests.77 And between 1980 and 2000, defeat rates for incumbents in non-partisan races were 7.4% as compared to 22.9% in partisan races.78 One explanation for this data, however, may be that non-partisan races are less politicized because they furnish voters with insufficient information to promote competitive races; partisan affiliation can serve as a rough proxy for the candidate’s views on a range of issues that furnish voters with information they deem relevant to casting an informed ballot.

That said, non-partisan races have recently become much more competitive affairs. In the 1980s, 40.8% of non-partisan judicial elections were contested, as compared to 62.5% in the 1990s (in partisan races, the percentage of contested races increased from 58.8% to 83.1%).79 And a recent study conducted by Matthew Streb found that so-called “non-partisan” races may not be as non-partisan as commonly assumed: How involved are party organizations in nonpartisan judicial campaigns? The answer appears to be that they are quite involved. While parties are not equally active in all aspects of nonpartisan judicial elections (and not necessarily active in every election cycle), they seem to be especially important in terms of GOTV [get out the vote] efforts and increasing name recognition, candidate recruitment, candidate endorsements, coordinating campaigns with candidates, and even raising and contributing money.80

Of greater concern, perhaps, is the impact of White on the future of non-partisan elections. If candidates are held to have a constitutional right to announce their partisan affiliations and engage in partisan activities in non-partisan races, as the United States Court of Appeals ruled in White on remand, the practical differences between partisan and nonpartisan elections may gradually disappear. We have already seen, in states such as Michigan and Ohio, *1274 where a nominally non-partisan general election is preceded by an openly partisan primary election process, that the resulting contests can be every bit as heated as in conventional partisan election states. In light of data indicating that when states relax campaign speech © 2014 Thomson Reuters. No claim to original U.S. Government Works. 7

Financial Influences on the Judiciary ■ Puiszis ■ 77 THE ENDLESS JUDICIAL SELECTION DEBATE AND..., 21 Geo. J. Legal... regulations in response to White, candidates alter their campaign speech to capitalize on the relaxed requirements,81 it is reasonable to predict that the same will occur if partisan activities restrictions are lifted.

C. MERIT SELECTION WITH RETENTION ELECTION

Advocates of merit selection, like proponents of non-partisan election, proceed from the premise that a judge’s duty to follow the law makes judges sufficiently different from other public officials to warrant a different method of selection. The two camps part company, however, over the relative merits of contested elections. Supporters of merit selection operate on three assumptions: First, that contested elections are not a good way to ensure the selection of capable and qualified judges; second, that contested elections are inimical to judicial independence because they put judges at risk of losing their jobs for making decisions that are unpopular with voters who are incapable of discerning when a judge has followed the law, committed an honest error, or made an illegitimate power grab; and third, that “politicization” of judicial selection in hotly contested races diminishes public confidence in the courts. A system in which governors appoint judges from a pool of candidates pre-qualified by an independent commission, they maintain, is better suited to ensure that judges are selected on the basis of merit. To accommodate entrenched public preferences for judicial elections, merit selection systems typically provide for retention elections that, by virtue of being non-competitive, are less likely to become highly politicized, independence-threatening affairs that diminish public confidence in the courts.

Available data undercut the assumption that merit selection systems produce “better” judges: A study conducted in the 1980s comparing the resumes of judges chosen in contested elections and in merit selection systems found no significant differences--they possess comparable legal and judicial experience, and elected judges were no more likely than their merit-selected counterparts to have partisan political backgrounds.82 On a related note, recent research reveals that there is no meaningful difference between the systems in terms of the racial or gender diversity of the judges selected.83 That said, it is more difficult to quantify *1275 intangibles that could support the conclusion that merit-selected judges are “better” qualified, such as whether, on average, they possess a more judicial temperament, are predisposed to be more impartial and independent, or to think about the judicial role in less partisan or otherwise political ways. A California study, for example, compared judges initially appointed to those initially elected and found that between 1990 and 1999, 29.8 out of every thousand judges initially appointed had been disciplined, as compared to 43.6 out of every thousand judges who had been initially elected.84

Recent data appear to corroborate the assumption that elected judges are more likely to align their decision-making with popular preferences than appointed judges, and to that extent are less independent. In their study of state supreme court reviews of capital cases, Paul Brace and Brent Boyea found “compelling but circumstantial evidence that state supreme court judges in capital cases may vote with an eye toward the next election,” and that “appointed judges and judges that are retiring all exhibit a higher propensity to over turn capital convictions than elective judges who are not retiring,”85 leading them to a conclusion worth quoting at length: In the end, the patterns revealed here indicate that judicial elections expose judges to public sentiment and, on this very salient issue at least, they respond by adjusting their voting in a manner than is consistent with public opinion. On this particular issue too, elections serve to recruit judges who share the public’s values. Elections thus function in a manner commonly valued in some democratic theories, producing elite responsiveness to mass opinions. When it comes to judicial elections, however, our findings may give pause to those who value judicial impartiality, particularly when it comes to a matter of life and death.86 Other studies have reached similar conclusions.87 Earlier studies comparing decision-making behavior of elected and merit selected judges, however, found no meaningful correlation between selection method and decision-making behavior.88 The discrepancy allows for several possible explanations: Voter *1276 influence in contested elections may be limited to a few, highly salient issues (such as capital punishment); voter influence in contested elections may be on the rise as judicial elections become more competitive; or retention elections in merit selection systems, despite being less competitive than contested elections, may nonetheless influence judicial behavior in comparable ways.

Research reveals that in merit selection systems, politics can play a role in selecting members of nominating commissions, in the deliberations of such commissions, and in the judges that governors ultimately choose from the approved candidate © 2014 Thomson Reuters. No claim to original U.S. Government Works. 8

78 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 THE ENDLESS JUDICIAL SELECTION DEBATE AND..., 21 Geo. J. Legal... pool.89 In response, the American Bar Association has developed standards for judicial selection that underscore the importance of preserving the independent, non-partisan character of judicial nominating commissions.90 To conclude from these developments, however--as some have--that merit selection systems simply move the politics of judicial selection from the ballot box to a back room misses an important point: the primary threat to independence arises at the point of re-selection, when judges are at put at risk of losing their jobs for unpopular decisions that they previously made. And on that score, there is ample support for the conclusion that, with notable exceptions, the prospect of an incumbent losing her seat in a retention election because of isolated, unpopular decisions is quite low. Whereas 23% of incumbent supreme court justices lost reelection bids in partisan elections between 1980 and 2000, and 7.4% lost in non-partisan races, the failure rate in retention elections was only 1.8%. And between 1964 and 1998, only 52 of 4,588 candidates in retention elections were not retained.91

Finally, there is support for the conclusion that highly politicized judicial races diminish public confidence in the courts. In his Kentucky-based study, James Gibson found that “when groups with direct connections to the decision-maker give contributions, legitimacy suffers substantially.”92 He likewise found that when candidates use attack ads, legitimacy is adversely affected, albeit to a lesser degree.93 Gibson also explored the impact of candidate position-taking on public confidence, and found none, adding that “even promises to decide cases in specific ways have no consequences at all for the legitimacy of the institution”--although I question the validity of this finding, given the problematic vignette he used to elicit public reactions in his survey.94

*1277 D. APPOINTMENT WITHOUT RE-SELECTION

In the current debate, few have argued for a system of legislative appointment. Some (including I) have argued that the optimal system for judicial selection is one in which judges are appointed by governors from a pool of commission-approved candidates, with or without legislative confirmation, who, once appointed, are not subject to reselection (via reappointment, retention election, or contested election).95 Such arguments operate from the premise that an appointive system alone promotes judicial independence by ensuring that a judge will not be put at risk of losing her job for making unpopular decisions that comport with the law as the judge reads it. Proponents of appointive systems assume that accountability is better promoted by means other than the ballot box: appellate review, constitutional amendment, adverse publicity, and intra-judicial disciplinary processes, and of course, prospective accountability fostered by the appointment process itself.

Although few judges actually lose their retention bids in merit selection states, the real issue is whether judges nonetheless fear defeat at the ballot box and act on that fear by deciding cases differently than they otherwise would. Malia Reddick reports on a 1991 survey of judges who recently stood for retention, in which three-fifths of respondents reported that “retention elections had a pronounced effect on their behavior on the bench”; only 14% believed that retention elections gave them independence from the voters, while “the remaining judges perceived themselves as responding to their environment.”96

As far as other accountability-promoting mechanisms are concerned, the Model Code of Judicial Conduct includes rules directing judges to be “faithful to” or to “uphold and apply” the law.97 These rules have been used more often than one might suppose to discipline and sometimes remove judicial officers who chronically or flagrantly disregard the rule of law in a range of contexts.98

*1278 IV. WHERE TO FROM HERE?

Ultimately, which of the various systems for judicial selection is “best” depends upon what one is looking for. If one is looking for a system that maximizes democratic accountability, then available data suggest that partisan elections will ordinarily be optimal. Conversely, if one is looking for a system that maximizes judicial independence, simple appointment (with or without a nominating commission) that does not subject incumbents to a reselection process will usually be the best bet. Non-partisan election and merit selection/retention election systems seek to strike a balance between these relative extremes, with non-partisan election systems placing somewhat greater emphasis on democratic accountability and merit selection/retention elections opting for somewhat greater independence.

Arguments over the relative merits of democratic accountability and judicial independence may be deeply normative, but turn in large part on an unresolved empirical question of considerable importance: Whether independent judges follow the law, and if so, how and to what extent. If the answer is “no,” as many political scientists believe, then the primary justification for

Financial Influences on the Judiciary ■ Puiszis ■ 79 THE ENDLESS JUDICIAL SELECTION DEBATE AND..., 21 Geo. J. Legal... judicial independence disappears.99 If law does not constrain judges in any meaningful way--if independent judges are essentially rogue policymakers-- the norms of a democratic republic dictate that judges be brought under greater popular control, so that the preferences judges act upon are better aligned with their “constituents.” Conversely, if, as most judges and lawyers believe, the answer is to some significant extent “yes”--if independent judges do indeed take law seriously--then judicial independence is back in the game. To study this question demands a more serious interdisciplinary effort than has occurred to date--and that is no mean feat. Too many political scientists and lawyers look at each other and shake their heads, so captured by the predispositions of their respective disciplines that they are unable or unwilling to take the other seriously.100 For those who have been struggling to preserve and promote an independent judiciary, however, the time has come to confirm the empirical foundations upon which their case rests, or rethink their premises.

I share Barry Friedman’s impressionistic sense that outside the political science subfield of attitudinal model scholars, “most likely there is agreement *1279 that attitudes and law both play a role--the question is how much, and more particularly, how much law can constrain. To state it differently, the question is not so much whether law plays a role, as what role it plays.”101 If so, then judicial independence remains a value worth preserving, but the operative question continues to be how much independence in relation to democratic accountability is optimal. Put another way, when (if ever) does the cost of enabling judges to act upon their political preferences or attitudes by insulating them from democratic accountability exceed the benefits of protecting them from threats to their tenure that compromise their capacity to adhere to the rule of law?

These are big questions that call for big choices between selection systems. Constitutional reform culminating in changes on this order of magnitude is a rare event. It can be a worthy goal and one well worth pursuing (as I have argued elsewhere), but not at the expense of ignoring shorter-term remedies that can make a bad system better in the interim. From the vantage point of those who want greater democratic accountability, the short-term solution is simply to let nature take its course, because the current trajectory of judicial races across the country is already leading in that direction. For those seeking to promote an independent judiciary in the teeth of recent developments, more modest reforms proposed by scholars and organizations, include: • Increasing the length of judicial terms, to reduce the frequency with which judicial tenure is put at risk.102

• Encouraging candidates to adopt voluntary campaign standards, to reduce negative campaigning and thwart the impact of White.103

• Continuing to defend existing ethical restrictions on judicial campaign conduct against constitutional challenge, at least until the Supreme Court clarifies the limits of White.104

• Developing more comprehensive judicial evaluation programs to provide voters in retention elections with more meaningful information about incumbents that reorient voter focus toward behavioral, rather than decisional accountability.105

• Increasing public knowledge about the role of the judiciary in American *1280 government, which has been shown to increase public support for judicial independence.106

• Taking judicial discipline seriously, as a means to underscore an important way in which judges who behave badly are properly held accountable.107

• Public financing of judicial campaigns at the appellate level, to reduce the influence of money on judicial races.108

• Expanding use of voter guides as a means to better inform voters about the candidates.109

V. CONCLUSION

In our existing legal structure, states lay claim to having independent judiciaries, whose judges take oaths to uphold the law. They have codes of judicial conduct that direct judges, on pain of discipline and removal, to follow the law and resist public and political pressure to do otherwise. And they require judges in all courts of general jurisdiction to have training and experience in the law, because unlike legislators and governors who make or execute the law, judges who interpret the law © 2014 Thomson Reuters. No claim to original U.S. Government Works. 10

80 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 THE ENDLESS JUDICIAL SELECTION DEBATE AND..., 21 Geo. J. Legal... must possess special expertise that non-lawyers lack. These features of the legal structure are compatible with judicial elections as originally conceived. As originally envisioned, contested elections were to promote judicial independence and the rule of law by transferring control of judicial selection from manipulative governors and legislatures to the people, and were to promote behavioral accountability by weeding out the incompetent, the lazy and the corrupt.

In the new world order, however, the primary justification for contested judicial elections has moved from preserving judicial independence and behavioral accountability to promoting decisional accountability by subjecting judges to loss of tenure for making decisions unpopular with the electorate. This new justification is fundamentally incompatible with the principles that underlie the existing legal structure. It assumes either that average voters are able to review judicial decisions for themselves and intelligently second guess a judge’s interpretations of law, or that the decisions judges make are matters of public policy rather than law, which voters have a right to control. The first assumption is at odds with the notion embedded in state law, that intelligently interpreting the law requires judges who have years of legal training and expertise that *1281 non-lawyers lack. The second assumption-- that judges simply make policy masquerading as law--guts the rule of law altogether and de-legitimizes constitutional structures and codes of conduct that preserve judicial independence.

Looking toward the future, there are three possibilities. First, we may simply continue to live with cognitive dissonance: highly competitive judicial elections and democratic accountability may be incompatible with the rule of law and judicial independence, but practical impediments to systemic change suggest that our time is better spent on incremental reform that reduces the incompatibility.110 Second, we may adjust the underlying legal structure to accommodate a new world of competitive judicial elections, by gradually distancing ourselves from the rule of law as a fiction of the bygone formalist age, and embracing contested elections and the democratic accountability they promote.111 Third, we may adjust judicial selection systems to accommodate the existing legal structure by moving away from highly competitive contested elections that are fundamentally at odds with the rule of law and an independent judiciary.112

Footnotes a1 John F. Kimberling Chair in Law, Indiana University at Bloomington. Thanks to Bert Brandenberg, Steve Burbank, Barry Friedman, and Roy Schotland for their comments on an earlier draft, and to Ted Brassfield for his research assistance.

1 Stephen B. Burbank & Barry Friedman, Reconsidering Judicial Independence, in JUDICIAL INDEPENDENCE AT THE CROSSROADS 9, 11-14 (2002).

2 CHARLES GARDNER GEYH, WHEN COURTS & CONGRESS COLLIDE: THE STRUGGLE FOR CONTROL OF AMERICA’S JUDICIAL SYSTEM 6-7 (2006).

3 Charles Gardner Geyh, Rescuing Judicial Accountability from the Realm of Political Rhetoric, 56 CASE W. RES. L. REV. 911 (2006).

4 MODEL CODE OF JUDICIAL CONDUCT R. 1.2 (2007) [hereinafter MODEL CODE].

5 MODEL CODE R. 2.2

6 MODEL CODE R. 2.4(A).

7 MODEL CODE R. 2.4(B).

8 MODEL CODE R. 2.4(C).

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9 Anthony Champagne & Judith Haydel, Introduction, in JUDICIAL REFORM IN THE STATES 3 (Anthony Champagne & Judith Haydel eds., 1993) [hereinafter JUDICIAL REFORM IN THE STATES].

10 GEYH, supra note 2, at 24-29.

11 Caleb Nelson, A Reevaluation of Scholarly Explanations for the Rise of the Elective Judiciary in Antebellum America, 37 AM. J. LEGAL HIST. 190 (1993). See also Kermit L. Hall, Progressive Reform and the Decline of Democratic Accountability: The Popular Election of State Supreme Court Judges, 1850-1920, 1984 AM. B. FOUND. RES. J. 345; F. Andrew Hanssen, Learning About Judicial Independence, Institutional Change in State Courts, 33 J. LEGAL STUD. 431, 445-48 (2004); Roy Schotland, Myth, Reality Past and Present, and Judicial Elections, 35 IND. L. REV. 659, 661-62 (2002).

12 Hanssen, supra note 11, at 442; Larry C. Berkson, Judicial Selection in the United States: A Special Report, 64 JUDICATURE 176 (1980).

13 Stephen P. Croley, The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law, 62 U. CHI. L. REV. 689, 723 (1994).

14 Hanssen, supra note 11, at 442.

15 CHARLES SHELDON & LINDA MAULE, CHOOSING JUSTICE: THE RECRUITMENT OF STATE AND FEDERAL JUDGES 6-7 (1997).

16 JUDICIAL REFORM IN THE STATES, supra note 9, at 7.

17 Matthew J. Streb & Brian Frederick, Judicial Reform and the Future of Judicial Elections, in RUNNING FOR JUDGE: THE RISING POLITICAL, FINANCIAL, AND LEGAL STAKES OF JUDICIAL ELECTIONS 204, 205-06 (Matthew J. Streb ed. 2007) [hereinafter RUNNING FOR JUDGE].

18 Id. at 210.

19 AM. BAR ASS’N., JUSTICE IN JEOPARDY: REPORT OF THE AMERICAN BAR ASSOCIATION COMMISSION ON THE 21ST CENTURY JUDICIARY 76-77 (2003) (hereinafter JUSTICE IN JEOPARDY), available at http:// www.abanet.org/judind/jeopardy/pdf/report.pdf. The position of the Commission on this point was subsequently adopted by the American Bar Association.

20 Data discussed in this paragraph is drawn from AM. JUDICATURE SOC’Y, JUDICIAL SELECTION IN THE STATES: APPELLATE AND GENERAL JURISDICTION COURTS (2007), http://www.ajs.org/selection/docs/Judicial%20Selection%20Charts.pdf.

21 Id. at 6. Of these four states, two subject judges to reappointment after a term of years, and a third subjects judges to periodic retention elections.

22 Id. Of these twenty three states, sixteen subject merit-selected judges to periodic retention elections, five subject them to reappointment after a term of years, and two appoint them for life or until a specified age.

23 Id. at 5. Of these two states, one subjects judges to periodic retention elections, and the other to reappointment after a term of years.

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24 Id. Of these eighteen states, fourteen stand for periodic retention election after a term of years, three are subject to reappointment, and in one, judges serve until a specified age.

25 Id. at 4. In two of these states, trial judges are subject to reappointment and in the third judges serve until a specified age.

26 Id. Of those fourteen states, seven subject judges’ to periodic retention elections, four subject judges to reappointment, one subjects them to non-partisan elections after a term of years and in two states judges serve for life or until a specified age.

27 JUDICIAL REFORM IN THE STATES, supra note 9, at 15-16 (“What the sum of these studies of state systems of judicial selection and efforts to reform those systems tell us is that ... there is no ideal selection system .... Instead, as one of our co-authors, Jim Drennan once said, “The experience with the selection of judges in the states proves conclusively that there is no good way to select judges.”’); JUSTICE IN JEOPARDY, supra note 19, at 69 (“Professor Paul Carrington and Adam Long report on a state chief justice who ‘not long ago declared that there is no method of selecting and retaining judges that is worth a damn. He was not the first to express that wisdom.’ Although we need not go quite that far, it is fairly said that there is no perfect selection system.”).

28 G. Alan Tarr, State Judicial Selection and Judicial Independence, app. D at 5, in JUSTICE IN JEOPARDY, supra note 19.

29 Id.

30 James Drennan, Judicial Reform in North Carolina, in JUDICIAL REFORM IN THE STATES, supra note 9, at 19, 26-27; Anthony Champagne, Judicial Reform in Texas, in JUDICIAL REFORM IN THE STATES, supra note 9, at 93, 94-100. But see Melinda Gann Hall, Competition as Accountability in State Supreme Court Elections, in RUNNING FOR JUDGE, supra note 17, at 165, 179-80 (finding that the “partisan transformation of the south” offers only a partial explanation for heightened competition in supreme court races).

31 PAUL CARRINGTON, DANIEL MEADOR, & MAURICE ROSENBERG, JUSTICE ON APPEAL 150 (1976).

32 Emily Field Van Tassel, Challenges to Constitutional Decisions of State Courts and Institutional Pressures on State Judiciaries, app. Eat 3, in JUSTICE IN JEOPARDY, supra note 19.

33 Id.; see also Chris Bonneau, The Dynamics of Campaign Spending in State Supreme Court Elections, in RUNNING FOR JUDGE, supra note 17, at 59, 64-65; Owen Abbe & Paul Herrnson, Public Financing for Judicial Elections? A Judicious Perspective on the ABA’s Proposal for Campaign Finance Reform, 35 POLITY 535, 539 (2003).

34 Chris Bonneau, The Dynamics of Campaign Spending in State Supreme Court Elections, in RUNNING FOR JUDGE supra note 17, at 63.

35 AM. JUDICATURE SOC’Y, JUDGES UNDER ATTACK: ETHICALLY APPROPRIATE ACTIVITY IN RETENTION ELECTIONS 2 (2005) (citing COMMON CAUSE OF OHIO, THE POLITICIZATION OF THE JUDICIARY (2005)).

36 Id. (citing Press Relase, Justice at Stake Campaign, 2004 State Supreme Court Election Overview (Mar. 9, 2005)).

37 Id.

38 Rachel Paine Caulfield, Iowa Judges Conference, The Foreboding National Trends in Judicial Elections 2 (June 24, 2005).

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39 JAMES SAMPLE, LAUREN JONES & RACHEL WEISS, THE NEW POLITICS OF JUDICIAL ELECTIONS 2006, at 3, 15 (2007).

40 JUSTICE IN JEOPARDY, supra note 19, at 38.

41 Deborah Goldberg, Interest Group Participation in Judicial Elections, in RUNNING FOR JUDGE, supra note 17, at 73, 81-82; see also Charles Gardner Geyh, Why Judicial Elections Stink, 64 OHIO ST. L.J. 43 (2002).

42 SAMPLE, JONES, & WEISS, supra note 39, at 18.

43 Geyh, supra note 41, at 49-50.

44 James Gibson, Challenges to the Impartiality of State Supreme Courts: Legitimacy Theory and “New Style” Judicial Campaigns 7 (Mar. 21, 2007) (unpublished manuscript, on file with the author).

45 SAMPLE, JONES, & WEISS, supra note 39, at 8, n.6.

46 JUSTICE IN JEOPARDY, supra note 19, at 38.

47 SAMPLE, JONES, & WEISS, supra note 39, at 8.

48 MODEL CODE OF JUDICIAL CONDUCT Canon 7 (1972).

49 MODEL CODE R. 2.10(B); MODEL CODE R. 4.1(A)(13); MODEL CODE OF JUDICAL CONDUCT Canon 3B(10), 5A(3)(d)(1) (1990) [hereinafter 1990 MODEL CODE].

50 MODEL CODE R. 4.1(A); 1990 MODEL CODE Canon 5A(1); 1990 MODEL CODE Canon 5C(2).

51 Republican Party of Minn. v. White, 536 U.S. 765, 788 (2002).

52 See MODEL CODE R. 2.10(B); MODEL CODE R. 2.11(A)(5); MODEL CODE R. 4.1(A)(13).

53 I served as Co-Reporter to the Commission and was in attendance at all Commission meetings. The views expressed here, however, are my own and are not necessarily shared by the Commission or its members.

54 AM. BAR ASS’N JOINT COMM’N TO EVALUATE THE MODEL CODE OF JUDICIAL CONDUCT, REPORT NO. 200, REVISED MODEL CODE OF JUDICIAL CONDUCT 150 (2007).

55 For a good summary of post-White litigation, see Brennan Center for Justice, Summaries of Relevant Cases Decided Since Republican Party of Minnesota v. White, http://www.brennancenter.org/stack_detail.asp? key=348&subkey=35327 (last visited Apr. 22, 2008) (summarizing post-White cases),

56 Republican Party of Minn. v. White, 416 F.3d 738, 766 (8th Cir. 2005) (en banc).

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57 Deborah Goldberg, Interest Group Participation in Judicial Elections, in RUNNING FOR JUDGE, supra note 17, at 84.

58 Caulfield, supra note 38, at 5; see also SAMPLE, JONES, & WEISS, supra note 39, at 30-34.

59 Reformers behind the original partisan election movement exhibited less concern for promoting democratic accountability than enhancing judicial independence. As F. Andrew Hanssen explains, “Judicial elections were intended, first and foremost, to provide judges with an independent power base that would enable them to stand up to legislative pressure.” Hanssen, supra note 11, at 447.

60 Geyh, supra note 41, at 53.

61 Martin P. Wattenberg, Ian McAllister, & Anthony Salvanto, How Voting is Like Taking an SAT Test: An Analysis of American Voter Rolloff, 28 AM. POL. Q. 234 (2000).

62 Lawrence Baum & David Klein, Voter Responses to High-Visibility Judicial Campaigns, in RUNNING FOR JUDGE, supra note 17, at 140, 141.

63 Justice at Stake Campaign, Poll of American Voters. Conducted by Greenberg, Quinlan, Rosner Research Inc. (2001).

64 Brian Schaffner & Jennifer Segal Diascro, Judicial Elections in the News, in RUNNING FOR JUDGE, supra note 17, at 115, 134.

65 In my defense, I acknowledged this development when White was decided, but argued that the kind of accountability that highly competitive elections promote is inconsistent with judicial independence and impartiality. See Geyh, supra note 41, at 64.

66 Laurence Baum & David Klein, Voter Responses to High-Visibility Campaigns, in RUNNING FOR JUDGE, supra note 17, at 142.

67 Melinda Gann Hall, Competition as Accountability in State Supreme Court Elections, in RUNNING FOR JUDGE, supra note 17, at 166.

68 Id. at 183.

69 Rachel Caulfield, The Changing Tone of Judicial Campaigns as a Result of White, in RUNNING FOR JUDGE, supra note 17, at 34, 55-56.

70 Brian Schaffner & Jennifer Segal Diascro, Judicial Elections in the News, in RUNNING FOR JUDGE, supra note 17, at 136.

71 Melinda Gann Hall, Competition as Accountability in State Supreme Court Elections, in RUNNING FOR JUDGE, supra note 17, at 166.

72 Id. at 167.

73 MODEL CODE R. 1.2; MODEL CODE R. 2.2; MODEL CODE R. 2.4(A). For an excellent elaboration on these issues, see David

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Pozen, The Irony of Judicial Elections, 108 COLUM. L. REV. 265 (2008).

74 See JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL (1993).

75 See, e.g., Barry Friedman, Taking Law Seriously, 4 PERSP. ON POL. 261 (2006).

76 Chris Bonneau, The Dynamics of Campaign Spending in State Supreme Court Elections, in RUNNING FOR JUDGE, supra note 17, at 63-64.

77 Melinda Gann Hall, Competition as Accountability in State Supreme Court Elections, in RUNNING FOR JUDGE, supra note 17, at 172.

78 Id. at 177-78.

79 Id. at 173.

80 Matthew Streb, Partisan Involvement in Partisan and Nonpartisan Trial Court Elections, in RUNNING FOR JUDGE, supra note 17, at 96, 102.

81 See Caulfield, supra note 17, at 49-55.

82 Henry Glick & Craig Emmert, Selection Systems and Judicial Characteristics: The Recruitment of State Supreme Court Judges, 70 JUDICATURE 228, 231-35 (1987).

83 Mark S. Hurwitz & Drew Noble Lanier, Explaining Judicial Diversity: The Differential Ability of Women and Minorities to Attain Seats on State Supreme and Appellate Courts, 3 ST. POL. & POL’Y Q. 329, 345 (2003). For earlier research, see Malia Reddick, Merit Selection: A Review of the Social Scientific Literature, 106 DICK. L. REV. 729, 740-41 (2002).

84 STATE OF CALIFORNIA, COMMISSION ON JUDICIAL PERFORMANCE, SUMMARY OF DISCIPLINARY STATISTICS 1990-1999, at 13 (2000).

85 Paul Brace & Brent Boyea, Judicial Selection Methods and Capital Punishment in the American States, in RUNNING FOR JUDGE, supra note 17, at 186, 193-94, 197.

86 Id. at 199.

87 Richard R.W. Brooks & Stephen Raphael, Life Terms or Death Sentences: The Uneasy Relationship Between Judicial Elections and Capital Punishment, 92 J. CRIM. L. & CRIMINOLOGY 609 (2003); Jason J. Czarnezki, Voting and Electoral Politics in the Wisconsin Supreme Court, 87 MARQ. L. REV. 323, 324 (2003).

88 See, e.g., RICHARD WATSON & RONDAL DOWNING, THE POLITIC OF BENCH AND BAR 324-26 (1969) (finding no difference between elected and merit-selected judges in their support for plaintiffs in personal injury litigation); Burton Atkins & Henry Glick, Formal Judicial Recruitment and State Supreme Court Decisions, 2 AM. POL. Q. 427 (1974) (finding no difference in decision-making behavior between merit selected and appointed judges with references to categories of litigant); Jerome O’Callaghan, Another Test for the Merit Plan, 14 JUST. SYS. J. 477 (1991) (finding no difference in drunk driving cases).

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89 See Reddick, supra note 83, at 732-34.

90 AM. BAR ASS’N, STANDARDS ON STATE JUDICIAL SELECTION: REPORT OF THE COMMISSION ON STATE JUDICIAL SELECTION STANDARDS (2000), available at http:// www.abanet.org/judind/downloads/reformat.pdf.

91 Larry Aspin, Trends in Judicial Retention Elections, 1964-1998, 83 JUDICATURE 79 (1999).

92 Gibson, supra note 44, at 17; see also Geyh, supra note 41, at 54-55.

93 Gibson, supra note 44, at 19. The author notes that these findings applied equally to legislative races.

94 The survey solicited reactions to a vignette in which a judge talks about his views on law suit abuse, abortion, and the death penalty, and “promises that, if reelected, he will decide these kinds of cases the way that most people in Kentucky want them decided.” It is to be expected that respondents would be untroubled by this scenario, because the judge was, in effect, simply saying, “When cases come before me, I promise to do what you would do.” The exceptional respondent who is well-versed in or intuitively embraces a counter-majoritarian role for the courts may find such a promise problematic, but it is hardly surprising that most would not, given polling data showing that 56% of the public agrees with the statement that court opinions should be in line with voter values and judges who repeatedly ignore those values should be impeached. Martha Neil, Half of U.S. Sees ‘Judicial Activism Crisis’, 4 A.B.A. J. EREPORT 40 (2005). Rather, the promises of primary concern to White critics are promises to decide particular issues or cases in specified ways, where the adverse consequences for impartiality are much more obvious. Had the vignette featured a judge who promised to affirm all drunk driving or capital convictions regardless of the facts, to side with mothers in all custody disputes, or to invalidate all abortion restrictions regardless of the law, it is quite possible that his survey results would be different.

95 Geyh, supra note 41, at 72-79; JUSTICE IN JEOPARDY, supra note 19, at 70-74.

96 Reddick, supra note 83, at 739-40 (discussing Larry Aspin & William Hall, Retention Elections and Judicial Behavior, 77 JUDICATURE 306 (1994)).

97 MODEL CODE R. 2.2; 1990 MODEL CODE Canon 3B(2).

98 JEFFREY SHAMAN, STEVEN LUBET, JAMES ALFINI, & CHARLES GEYH, JUDICIAL CONDUCT & ETHICS §§ 2.02-2.11 (4th ed. forthcoming 2008).

99 If there is no reality to the rule of law, the only remaining justification for judicial independence would seem to be a highly precarious one, that public confidence in the judiciary turns on promoting the rule of law “myth,” a key component of which is judicial independence. See Gibson, supra note 44, at 5-6 (discussing the “myth of legality” and how it is preserved by exposing the public to legitimizing “symbols of impartiality and insulation from ordinary political pressures”); see also Charles Gardner Geyh, The Judgment of the Boss on Bossing the Judges: Bruce Springsteen, Judicial Independence and the Rule of Law, 14 WIDENER L.J. 885, 902-05 (2005) (discussing the “mythical aspects” of the rule of law).

100 For an excellent discussion of the divide that separates academic lawyers and political scientists, see Friedman, supra note 75, at 261-262.

101 Id. at 264.

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102 Roy Schotland, The Crocodile in the Bathtub ... and Other Arguments to Extend Terms for Trial Judges, CAL. CTS. REV., Fall 2005, at 10; Call to Action: Statement of the National Summit on Improving Judicial Selection, 34 LOY. L.A. L. REV. 1353, 1355 (2001).

103 Charles Gardner Geyh, Preserving Public Confidence in the Courts in an Age of Individual Rights and Public Skepticism, in BENCH-PRESS: THE COLLISION OF THE COURTS, POLITICS AND THE MEDIA (2007); see also THE CONSTITUTION PROJECT, HIGHER GROUND STANDARDS OF CONDUCT FOR JUDICIAL CANDIDATES (2000), http://www.constitutionproject.org/pdf/The_Higher_Ground_ Standards_of_Conduct_for_Judicial_Candidates.pdf.

104 Geyh, supra note 103.

105 Seth Andersen, Judicial Retention Evaluation Programs, 34 LOY. L.A. L. REV. 1375 (2001).

106 James L. Gibson & Gregory A. Caldeira, Knowing About Courts 23-24 (2007), http://papers.ssm.com/so13/papers.cfm?abstract_id=956562.

107 JUSTICE IN JEOPARDY, supra note 19, at 58-59.

108 AM. BAR ASS’N., PUBLIC FINANCING OF JUDICIAL CAMPAIGNS: REPORT OF THE COMMISSION ON PUBLIC FINANCING OF JUDICIAL CAMPAIGNS (2002), available at http://www.abanet.org/judind/pdf/commissionreport4-03.pdf. But see Michael MALBIN & THOMAS GAIS, THE DAY AFTER REFORM: SOBERING CAMPAIGN FINANCE LESSONS FROM THE AMERICAN STATES (1997) (questioning the viability of public financing).

109 Call to Action, supra note 102, at 1357.

110 See, e.g., Roy Schotland, Summit on Improving Judicial Selection, Introduction: Personal Views, 34 LOY. L.A. L. REV. 1361 (2001).

111 See, e.g., Michael Dimino, Judicial Elections Versus Merit Selection: The Futile Quest for a System of Judicial “Merit” Selection, 67 ALB. L. REV. 803 (2004).

112 See, e.g., Geyh, supra note 41, at 58-61.

88 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 Attachment

Legal Studies Research Paper Series

The Dimensions of Judicial Impartiality

Charles Gardner Geyh

Research Paper Number 201 65 FLA. L. REV. 493 (2013)

This paper can be downloaded without charge from the Social Science Research Network electronic library at: http://ssrn.com/abstract=2016522

Financial Influences on the Judiciary ■ Puiszis ■ 89 THE DIMENSIONS OF JUDICIAL IMPARTIALITY

Charles Gardner Geyh∗

Abstract Scholars have traditionally analyzed judicial impartiality piecemeal, in disconnected debates on discrete topics. As a consequence, current understandings of judicial impartiality are balkanized and muddled. This Article seeks to reconceptualize judicial impartiality comprehensively, across contexts. In an era when “we are all legal realists now,” perfect impartiality—the complete absence of bias or prejudice—is at most an ideal; “impartial enough” has, of necessity, become the realistic goal. Understanding when imperfectly impartial is nonetheless impartial enough is aided by conceptualizing judicial impartiality in three distinct dimensions: a procedural dimension, in which impartiality affords parties a fair hearing; a political dimension, in which impartiality promotes public confidence in the courts; and an ethical dimension, in which impartiality is a standard of good conduct core to a judge’s self-definition. The seeming contradictions that cut across contexts in which judicial impartiality problems arise can, for the most part, be explained with reference to the dimensions those problems inhabit and the constraints to which regulation in those dimensions are subject. Thus, what is impartial enough to assure parties a fair hearing in the procedural dimension may or may not be impartial enough to satisfy the public in the political dimension, which may or may not be impartial enough to ensure that judges are behaving honorably in the ethical dimension. Analyzing partiality problems through the lens of the dimensions they occupy not only resolves many of the imponderables that have long plagued the subject, but also reveals a distinct trend— impartiality is being transformed, from a value traditionally regulated largely by judges and the legal establishment in the procedural and ethical dimensions, to one that is increasingly the province of the political dimension, where it is regulated by the public and its elected representatives. By situating impartiality at the crossroads of judicial procedure, ethics, and politics, this Article offers a new perspective, not just on judicial impartiality, but also on the role of the American judiciary in the administration of justice and the political process.

∗ Associate Dean of Research and John F. Kimberling Professor of Law, Indiana University Maurer School of Law. I would like to thank Steve Burbank, Paul Carrington, Steve Gillers, Steve Lubet, Judith Resnik, Ron Rotunda, and Emily Van Tassel for their comments on earlier drafts. Thanks likewise to Kara O’Brien for her help in developing Part I; to the wonderful library staff at the Maurer School of Law for its assistance in finding sources referenced in Part I; and to Cristina Costa for her research assistance.

493

90 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 494 FLORIDA LAW REVIEW [Vol. 65

INTRODUCTION ...... 494

I. PERSISTENT PARTIALITY PROBLEMS ...... 498 A. The Judge Who Has a Personal Interest in Case Outcomes ...... 499 B. The Judge Who Has a Relational Interest in Case Outcomes ...... 502 C. The Judge Who Has a Political Interest in Case Outcomes ...... 503 D. The Judge Who Has a Personal Bias ...... 505

II. THE DIMENSIONS OF IMPARTIALITY ...... 509

III. REGULATING THE DIMENSIONS OF IMPARTIALITY ...... 513 A. Regulating Impartiality in the Procedural Dimension ... 514 1. The Due Process Clauses ...... 515 2. Disqualification ...... 518 3. Rules of Litigation Procedure ...... 520 B. Regulating Impartiality in the Ethical Dimension ...... 523 C. Regulating Judicial Impartiality in the Political Dimension ...... 529 1. Mechanisms for Judicial Removal ...... 530 2. Mechanisms for Judicial Selection ...... 533 3. Mechanisms for Judicial Oversight ...... 538

IV. PONDERING IMPONDERABLES AND TRACKING TRENDS ...... 540 A. The Imponderables Revisited ...... 540 B. Trends in the Regulation of Impartiality ...... 544

CONCLUSION ...... 551

INTRODUCTION “Judicial impartiality” is a feel-good term, like “puppies” and “pie,” that no decent soul would denigrate. Like “judicial independence,” judicial impartiality is ubiquitous. It is used and abused in myriad ways: to make legal arguments, score political points, exhort judges, and reassure the public. Unlike judicial independence, however—which has been exhaustively analyzed, theorized, canonized, and eulogized in books, edited volumes, reports, academic conferences, and articles— judicial impartiality has received no systematic attention. There have been targeted efforts to evaluate when a judge’s impartiality might reasonably be questioned for purposes of judicial disqualification;1

1. See, e.g., Leslie W. Abramson, Appearance of Impropriety: Deciding When a Judge’s

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when the need for judicial impartiality justifies various ethics restrictions on judicial speech, association, and conduct;2 and when adjudicators run afoul of the Due Process Clause for being actually, probably, or apparently partial.3 Missing from the literature is any sustained effort to conceptualize impartiality broadly in relation to its multiplicity of applications. As a consequence of being undertheorized and haphazardly analyzed, judicial impartiality has stumbled its way into a series of holes, imponderables, and seeming contradictions: • In 1974, author Lillian Hellman wrote that “[n]obody outside of a baby carriage or a Judge’s chamber can believe in an unprejudiced point of view.”4 As jaded as she may have meant to sound nearly four decades ago, in a skeptical age when social science research has debunked the notion that judges entertain an “unprejudiced point of view,” the distinction she drew between judges and the general population seems almost naïve. Is the realm of the impartial now peopled only with infants—is judicial impartiality a fiction, or worse, a scam? • Vaughn Walker, a gay district court judge, invalidated California’s Proposition 8, which outlawed same-sex marriage.5 Under the federal disqualification statute, Judge Walker’s sexual orientation did not furnish a reasonable basis to question his impartiality.6 On the other hand, if Judge Walker owned a single share of stock in a corporation that intervened to defend Proposition 8, he would have had to disqualify himself immediately.7 Is it more likely that Judge Walker’s nominal shareholding would incline him to uphold Proposition 8, than that a lifetime of discrimination as a gay man would incline him to invalidate it?

Impartiality “Might Reasonably Be Questioned,” 14 GEO. J. LEGAL ETHICS 55 (2000); Jeffrey W. Stempel, In Praise of Procedurally Centered Judicial Disqualification—and a Stronger Conception of the Appearance Standard: Better Acknowledging and Adjusting to Cognitive Bias, Spoliation, and Perceptual Realities, 30 REV. LITIG. 733 (2011). 2. See, e.g., Kathleen M. Sullivan, Republican Party of Minnesota v. White: What are the Alternatives?, 21 GEO. J. LEGAL ETHICS 1327 (2008); Developments in the Law: Voting and Democracy, 119 HARV. L. REV. 1127 (2006). 3. See, e.g., Penny J. White, Relinquished Responsibilities, 123 HARV. L. REV. 120 (2009). 4. Lillian Hellman, Love Letters, Some Not So Loving, N.Y. TIMES, Oct. 13, 1974, http://www.nytimes.com/books/00/09/10/specials/west-ray.html. 5. Lisa Leff, U.S. Court Rules Recusal of Gay Judge Not Necessary: Legal Battle on California’s Prop 8 Continues, HOUS. CHRON., June 15, 2011, at A5. 6. See id. 7. 28 U.S.C. §§ 455(b)(4), (d)(4) (2006) (requiring disqualification when a judge “has a financial interest in . . . a party to the proceeding,” and defining “financial interest” as “ownership of a legal or equitable interest, however small”).

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• In 2002, the U.S. Senate blocked President George W. Bush’s nomination of District Judge Charles Pickering to the Fifth Circuit Court of Appeals on the grounds that his ideologically conservative views fueled doubts among interest groups and Senate Democrats that he would impartially uphold the law;8 and yet, upon returning to his duties as a district court judge, it would have been frivolous for parties to seek Judge Pickering’s disqualification on the grounds that his impartiality might reasonably be questioned.9 Why the double standard? • Minnesota’s Code of Judicial Conduct included an ethics rule that forbade judicial candidates from announcing their views on issues that they would likely decide as judges—a rule the state defended as necessary to preserve judicial impartiality.10 Justice Antonin Scalia, writing for the Supreme Court in 2002, emphatically rejected the view that impartiality meant a “lack of preconception in favor of or against a particular legal view,” on his way to invalidating the rule on First Amendment grounds.11 Yet sixteen years earlier, then-nominee Judge Scalia refused to announce his legal views to the Senate Judiciary Committee, explaining: [T]he only way to be sure that I am not impairing my ability to be impartial, and to be regarded as impartial in future cases before the Court, is simply to respectfully decline to give an opinion on whether any of the existing law on the Supreme Court is right, or wrong.12 Was Justice Scalia being duplicitous, or was something else going on? • In the seventeenth century, Sir Matthew Hale devised a code of judicial conduct for his own use, which included a rule stating: “That I never engage myself in the beginning of any cause, but reserve myself unprejudiced till the whole be heard.”13 More recently, however, the

8. See Darryl Fears, Nominee’s Past Opens Old Wounds; Appeals Court Pick Raises Tempers, Divides Blacks, WASH. POST, Mar. 3, 2002, at A5 (discussing opposition to Judge Pickering in terms of his ideology compromising his impartiality); Charles Hurt, Senators Send a Signal, Reject Judicial Pick in Voting down a Conservative Judge for an Appeals Court Seat, PHILA. INQUIRER, Mar. 15, 2002, at A2 (reporting on Senate Judiciary Committee rejection of Judge Pickering). 9. RICHARD E. FLAMM, JUDICIAL DISQUALIFICATION: RECUSAL AND DISQUALIFICATION OF JUDGES § 10.7 (2d ed. 2007) (noting that there is a “strong presumption against disqualifying a judge” solely on the basis of the judge’s judicial philosophy or views on matters of public policy). 10. See Republican Party of Minn. v. White, 536 U.S. 765, 768–75 (2002). 11. Id. at 777–78. 12. Nomination of Judge Antonin Scalia, to be Associate Justice of the Supreme Court of the United States: Hearings Before the Committee on the Judiciary, 99th Cong. 58 (1986) (statement of Antonin Scalia, Judge, U.S. Court of Appeals for the District of Columbia Circuit). 13. 2 LORD CAMPBELL, THE LIVES OF THE CHIEF JUSTICES OF ENGLAND 208 (1881).

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U.S. Supreme Court has directed judges not to postpone judgment, given the expense of discovery, but to dismiss complaints at the beginning of any cause that judges deem “implausible” in light of their “common sense” and “experience.”14 Is impartiality becoming expendable? In Part I, I seek to isolate persistent problems with judicial partiality as they have been described and discussed in popular culture, to the end of illustrating the various ways in which judicial impartiality has been conceptualized. The goal is to define impartiality and its converse in functional rather than legal terms: partiality is as partiality does. Over time, authors of novels, poems, disquisitions, and polemics have identified a sprawling array of behaviors as antithetical to judicial impartiality. A synthesis of these illustrations yields a typology that helps to delineate the scope of judicial partiality as it has traditionally been understood. A critical insight in Part I is that traditional understandings of judicial impartiality do not include the naïve assumption that judges are devoid of bias. Judges have long been characterized as human beings subject to human prejudices—a characterization that has gained currency in the aftermath of the legal realism movement. If perfect impartiality is unattainable, the more pragmatic objective is to ensure that judges are “impartial enough” to fulfill the role assigned them under state and federal constitutions: to uphold the rule of law. How impartial is impartial enough to preserve the rule of law, however, depends on who one asks and why they care. In Part II, I argue that there are three beneficiaries of an impartial judiciary, each with different interests, who occupy three distinct dimensions of judicial impartiality: (1) parties to ligation, who seek a fair hearing from an impartial judge, in a “procedural dimension” of impartiality; (2) the public, for whom the institutional legitimacy of the judiciary depends on the impartiality of its judges, in a “political dimension” of impartiality; and (3) judges themselves, who take an oath to be impartial and for whom impartiality is a standard of conduct that is core to their self-definition, in an “ethical dimension” of impartiality. In Part III, I describe the different mechanisms for managing impartiality in the procedural, ethical, and political dimensions, to the end of reconceptualizing how impartiality is regulated. The differing objectives of each dimension, and the varying constraints under which each dimension operates, yield perspectives unique to each dimension on how judicial partiality problems should be managed.

14. Bell Atl. Corp. v. Twombly, 550 U.S. 554, 593–95 (2007) (Stevens, J., dissenting); Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

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Part IV then returns to the imponderables enumerated in the opening paragraphs of this Article, which ultimately become ponderable, when evaluated with reference to the dynamic, tripartite schema developed here. Reanalyzing these developments reveals a distinct trend, in which the scope of procedural and ethical impartiality is shrinking, while the reach of political impartiality is correspondingly expanding. The net effect is not, as some commentators have argued, that impartiality is under siege or diminishing; rather, impartiality is being transformed, from a value traditionally regulated in large part by judges and the legal establishment in the procedural and ethical dimensions, to one that is increasingly the province of the political dimension, where it is subject to regulation by the public and their elected representatives. The three- dimensional construct developed here thus offers a new perspective on longstanding claims that the judiciary has become overly politicized, and, in so doing, illuminates approaches to reform.

I. PERSISTENT PARTIALITY PROBLEMS The Oxford English Dictionary defines “impartial” as “[n]ot partial; not favouring one party or side more than another; unprejudiced, unbiased, fair, just, equitable.”15 Conversely, “partial” is defined as “unduly favouring one party or side in a suit or controversy, or one set or class of persons rather than another; prejudicied; biased; interested; unfair.”16 “Bias,” in turn, is defined as “[a]n inclination, leaning, tendency, bent; a preponderating disposition or propensity; predisposition towards; predilection; prejudice.”17 Finally, the Oxford English Dictionary defines “prejudice” as a “[p]reconceived opinion; bias or leaning favourable or unfavourable; prepossession . . . an instance of this; a feeling, favourable or unfavourable, towards any person or thing, prior to or not based on actual experience; bias, partiality,”18 and Webster’s Third New International Dictionary elaborates that it is “an opinion or leaning adverse to anything [formed] without just grounds or before sufficient knowledge.”19 Impartiality, described in these ways, has been a defining feature of the judicial role dating back to antiquity. Plato recounts that in 399 BC, Socrates described a judge’s responsibilities in the following way: “Four things belong to a judge: to hear courteously, to answer wisely, to consider soberly, and to decide impartially.”20 To better understand how

15. OXFORD ENGLISH DICTIONARY 700 (2d ed. 1989). 16. Id. at 265. 17. Id. at 166. 18. Id. at 356–57. 19. 2 WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 1788 (16th ed. 1971). 20. FRANKLIN PIERCE ADAMS, BOOK OF QUOTATIONS 466 (1952).

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and why law regulates judicial impartiality, it helps to appreciate the range of perceived partiality problems to which lawyers, lawmakers, and judges have responded over time. Such an exercise requires an exploration beyond legal texts to sources that reflect broader public concerns. In the absence of polling data from the distant past, partiality problems as portrayed in literature (fictional and not) may be the next best proxy, for they illuminate how judicial partiality was understood by authors of the time—understandings intended to resonate with contemporary readers. Studying partiality problems of the past with reference to literature of the day comes with two caveats: first, literature offers insights into how judicial conduct was perceived, but not necessarily how judges actually behaved; and second, fiction writers can be expected to exaggerate perceived problems to make their points and sell books. Here, however, my objective is limited to categorizing the range of judicial biases and prejudices that have been on the public’s mind over time, where it is irrelevant that the nature and extent of such biases and prejudices have sometimes been exaggerated. Armed with this deeply rooted typology, it is comparatively easy work to sort and situate analogous events that implicate judicial partiality in current debate. Conceptions of judicial partiality, drawn from depictions in nonlegal texts, can be organized into four categories: judges who have personal interests in case outcomes; judges who have relational interests in case outcomes; judges who have political interests in case outcomes; and judges who have personal biases for or against case participants that are unattributable to the judges’ personal, relational, or political interests. A. The Judge Who Has a Personal Interest in Case Outcomes The archetype of the partial judge is the corrupt jurist who solicits or accepts bribes. As early as the second century BC, Shudraka wrote of the need for judges to be “untouched by avarice.”21 William of Nassington and John Gower each complained of fourteenth century English judges siding with whichever party gave the judge the larger gift,22 and a folktale of that period—widely told across the Eurasian continent—recounted this phenomenon in humorous terms: A carpenter and a butcher took each other to court over a will. The carpenter gave the judge’s wife a wagon and the judge sided with the carpenter until the butcher presented the judge’s wife with four oxen to pull the wagon, whereupon the judge entered judgment for the butcher.23 “Turn the

21. Shudraka, The Little Clay Cart, in 9 HARVARD ORIENTAL SERIES 133–34 (Arthur William Ryder trans., 1905) (2007), available at http://www.sacred-texts.com/hin/lcc. 22. KATHLEEN E. KENNEDY, MAINTENANCE, MEED, AND MARRIAGE IN MEDIEVAL ENGLISH LITERATURE 92, 96 (2009) (recounting the views of Nassington and Gower). 23. Theo Meder, Tales of Tricks and Greed and Big Surprises: Laymen’s Views of the

96 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 500 FLORIDA LAW REVIEW [Vol. 65 wagon,” called the carpenter to the judge, but the judge replied: “The wagon cannot be turned, for the oxen want to go the other way.”24 Three centuries later, concerns persisted. In England, A Poem on the Times wryly observed: The ambidextrous judges, bribed, rebrib’d And lesser gifts to greater still subscribed.25 In an eighteenth century Chinese novel, Celebrated Cases of Judge Dee, the anonymous author wrote that “the amelioration of the common people depends on the honesty of the magistrate,” adding that “magistrates who let their conduct of a case be influenced by bribes . . . should never be appointed a ruler over others,” because “how could such men make their subordinates honest, and bring peace to the common people?”26 While the personal interest at stake for the partial judge is typically economic, that is not always so. In Shakespeare’s Measure for Measure, for example, the corrupt quid pro quo featured a judge who sought to trade a decision for sexual favors.27 Partial judges have also been portrayed as abusing judicial power for personal gain by means other than the traditional quid pro quo. Geoffrey Chaucer’s Physician’s Tale concerned a “wicked judge” who paid a “churl” to falsely claim that a “noble knight’s” daughter was the churl’s slave so that the judge would have a pretext to take custody of the knight’s daughter and have his way with her.28 Judges who accepted gifts from interested parties after the case was over, or without express or implied assurances of reciprocation, raised the specter of partiality for personal gain without demonstrable corruption.29 In the absence of stable and adequate judicial salaries, such gifts were in lieu of income, and debate persists to this day on the extent to which the rampant bribery complained of in England throughout the middle part of the second millennium was real or merely perceived—particularly given the harsh penalties in place for bribery.30 There is no disputing, however, that gifts from parties invited favoritism, fueled widespread suspicions

Law in Dutch Oral Narrative, 21 HUMOR 435, 438–39 (2008). 24. Id. at 439. 25. Wilfrid Prest, Judicial Corruption in Early Modern England, 133 PAST & PRESENT 67, 69 (1991) (quoting A Poem on the Times). 26. CELEBRATED CASES OF JUDGE DEE 5–6 (Robert Van Gulik trans., 1976). 27. WILLIAM SHAKESPEARE, MEASURE FOR MEASURE act 2, sc. 4, lines 52–54. 28. See GEOFFREY CHAUCER, CANTERBURY TALES 283–90 (J.U. Nicolson trans., Garden City Publ’g Co. ed. 1934). 29. KENNEDY, supra note 22, at 111 (“Receiving payment after an impartial decision was still considered wrong.”). 30. Prest, supra note 25, at 72–73 (“If for no better reason than fear of the consequences . . . medieval judges cannot usually have behaved in ways which directly contravened the letter of their oath . . . .”).

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of corruption, and were—with the exception of modest gifts of food and drink—regarded as troublesome.31 In 1620, Sir Francis Bacon was impeached for accepting gifts from litigants, despite his proof that he often ruled against his benefactors.32 Later that century, Sir Matthew Hale penned a personal code of judicial conduct that included the self- admonition “[t]o abhor all private solicitations . . . in matters depending.”33 The practice of judges subsidizing their incomes by keeping the fines they assessed—a practice requiring disqualification of judges in English courts as early as 160934—likewise concerned a judge’s problematic personal interest in case outcomes outside the context of corrupt quid pro quos. Contemporary analogs: The judge who abuses his office for personal gain by taking bribes or accepting favors continues to exemplify the bad judge depicted in television series and films. In a new twist on this ancient problem, John Grisham’s The Appeal portrays an interested party who bought influence with a justice on the Mississippi Supreme Court by contributing to his election campaign.35 These stories mirror contemporaneous events: twice in the past generation, judicial corruption has held the spotlight on the nation’s biggest stage for official misconduct—congressional impeachment proceedings. In 1989, Congress impeached and removed District Judge Alcee Hastings for conspiring to solicit a bribe.36 And in 2010, Congress impeached and removed District Judge G. Thomas Porteous for, among other things, soliciting money from an attorney in a pending case.37 Sting operations aimed at rooting out judicial corruption at the local level have also made occasional headlines.38 Issues raised by Grisham’s The Appeal have played out in West Virginia and elsewhere as reformers have decried the influence, real or perceived, of campaign contributions on judicial decision making, and its adverse impact on judicial impartiality.39 In a

31. Id. at 71–73. 32. MARY L. VOLCANSEK, JUDICIAL MISCONDUCT: A CROSS-NATIONAL COMPARISON 70– 71 (1996). 33. LORD CAMPBELL, supra note 13, at 208. 34. See Bonham v. Coll. of Physicians (Dr. Bonham’s Case), 77 Eng. Rep. 646, 652 (1610). 35. See generally JOHN GRISHAM, THE APPEAL (2008). 36. EMILY FIELD VAN TASSEL & PAUL FINKELMAN, IMPEACHABLE OFFENSES: A DOCUMENTARY HISTORY FROM 1787 TO THE PRESENT 172–74 (1999). 37. Details of the Articles of Impeachment for Porteous, CQ WEEKLY (Dec. 13, 2010), available at http://library.cqpress.com/cqweekly/document.php?id=weeklyreport111-00000377 7898&type=toc&num=77&. 38. See, e.g., JAMES TUOHY & ROB WARDEN, GREYLORD: JUSTICE, CHICAGO STYLE 36–57 (1989) (describing the “Greylord” sting operation); Drew Broach, Judges Probe Began with 1 Tip: Bondsman Pointed Finger at Rival, TIMES-PICAYUNE (New Orleans, La.), Oct. 31, 2011, at A1 (describing the “Wrinkled Robe” sting operation). 39. See JAMES SAMPLE ET AL., THE NEW POLITICS OF JUDICIAL ELECTIONS 2000–2009:

98 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 502 FLORIDA LAW REVIEW [Vol. 65 like vein, lawmakers and the media have criticized judges for taking expense paid “junkets” to educational seminars at vacation resorts, courtesy of corporations with an interest in cases coming before those judges, arguing that such trips create an appearance—if not the reality— of partiality.40 B. The Judge Who Has a Relational Interest in Case Outcomes The concern that impartiality could be corrupted by a judge’s preexisting relationship with parties to a proceeding is longstanding. As early as the second century BC, Shudraka urged judges to show “equal grace” to “friend, foe, [and] kinsman.”41 The peril of judges being influenced by their friendships was a topic of concern in fourteenth century Europe. John Gower, writing in the 1370s, noted how difficult it was to bring suit against anyone who had ties to the judge, and criticized the practice of litigants finding nobles who were friendly with the judge to write letters vouching for litigants in court.42 Authors have likewise chronicled the danger of partial judges presiding over trials of their enemies. In the fifteenth century, Thomas Hoclave recounted the story of a Persian judge who the king ordered to be flayed alive for sentencing a personal enemy to death.43 And in his quasi-historical work Personal Recollections of Joan of Arc, Mark Twain wrote of Bishop Cauchon—who presided at Joan’s trial for heresy notwithstanding his vested interest in her demise—that “this proposed judge was the prisoner’s outspoken enemy, and therefore he was incompetent to try her.”44 Then, there are relatives. In Lewis Carroll’s Alice’s Adventures in Wonderland, the King was doubly encumbered: he was a judge presiding over a trial in which his tyrannical wife was the victim of an alleged tart theft, and he was a nincompoop.45 The resulting partiality problem manifested itself as a race to judgment. No sooner was the indictment read against the Knave of Hearts than the King-Judge, with the Queen scowling at his side, directed the jury to “[c]onsider your verdict,” prompting the herald (the white rabbit) to admonish the King:

DECADE OF CHANGE 1–4 (2010). Campaign contributors can likewise create an external political interest in case outcomes for the judge. See infra Section I.C.; Meryl J. Chertoff, Trends in Judicial Selection in the States, 42 MCGEORGE L. REV. 47, 48 (2010). 40. See, e.g., Glen Elsasser, Activists Shine Light On Junkets For Judges, CHI. TRIB., July 25, 2000, at N4; Editorial, Time to Ban Judicial Junkets, N.Y. TIMES, Oct. 15, 2005, at A18. 41. Shudraka, supra note 21. 42. KENNEDY, supra note 22, at 96. 43. Id. at 111. 44. 2 MARK TWAIN, PERSONAL RECOLLECTIONS OF JOAN OF ARC 64–65 (1896). 45. See LEWIS CARROLL, ALICE’S ADVENTURES IN WONDERLAND & THROUGH THE LOOKING-GLASS AND WHAT ALICE FOUND THERE 91–103 (Orion Publ’g Grp. 1993) (1865).

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“Not yet, not yet! . . . There’s a great deal to come before that!”46 As the proceedings continued, the King passively abided the Queen’s mid-trial exhortations to declare the knave guilty and have him beheaded, before calling upon the jury to render a verdict “for about the twentieth time that day,” only to have the enraged Queen rejoin: “No, no! . . . Sentence first—verdict afterwards.”47 Contemporary analogs: The risk of favoritism that relational conflicts of interest create is embodied in the contemporary adage: “A good lawyer knows the law; a great lawyer knows the judge.” In 2004, Justice Antonin Scalia provoked a media firestorm when he refused to withdraw from a case in which Vice President Dick Cheney was a party, after flying to Louisiana at the Vice President’s invitation for a weekend of duck hunting while the case was pending.48 In 2008, Wisconsin Supreme Court Justice Annette Ziegler was reprimanded for presiding over cases, as a court of appeals judge, in which her husband’s business was a party.49 More recently still, Justice Clarence Thomas’s qualifications to sit in a case concerning the constitutionality of health care reform legislation has been challenged on the grounds that organizations with which his wife was affiliated stood to gain if the legislation was invalidated.50 C. The Judge Who Has a Political Interest in Case Outcomes Impartiality has often been portrayed as compromised when judges have a political interest in the outcome of a proceeding. Political interests can be subdivided into the external and internal. External political interests are situated at the intersection between judicial impartiality and judicial independence: a judge’s impartiality is undermined when her political future is subject to manipulation or control by others who have an interest in the outcomes of cases the judge decides. Internal political interests, in contrast, relate to ideological zeal, which can bias the judge for or against litigants and lead her to prejudge cases.

46. Id. at 93. 47. Id. at 101. 48. See Editorial, The Court’s Honor at Stake, STAR-LEDGER (Newark, N.J.), Mar. 19, 2004, at 20; Op-Ed., Duck Blinded: Scalia’s Trip Doesn’t Pass Smell Test, OKLAHOMAN, Feb. 19, 2004, at 12A; Editorial, Justice in a Bind, N.Y. TIMES, Mar. 20, 2004, at A12; Editorial, Position Looks Compromising, SUN-SENTINEL (Fort Lauderdale, Fla.), Feb. 3, 2004, at 16A; Editorial, Scalia’s Conflict of Interest, DENVER POST, Jan. 26, 2004, at B-07; Op-Ed., Scalia Tries to Duck Conflict with Waterfowl Reasoning, TAMPA TRIB. (Fla.), Jan. 26, 2004, at 18. 49. Steven Elbow, State Supreme Court Reprimands Ziegler in Unprecedented Ruling, CAPITAL TIMES (Madison, Wis.), May 28, 2008. 50. Robert Barnes, As Health Case Looms, 2 Justices Targeted: Conservatives Attack Kagan While Liberals Slash at Thomas, HOUS. CHRON., Dec. 4, 2011, at A23.

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Illustrations abound of judges whose impartiality has been depicted as compromised by external political interests. The most infamous example comes from the crucifixion scene in the New Testament: Pontius Pilate judged Jesus blameless, but acquiesced to calls for his crucifixion after the Jews cried out, saying “[i]f you let this man go, you are no friend of Caesar.”51 In Leo Tolstoy’s Resurrection, a panel of judges imposed a harsh sentence on the accused—notwithstanding its recognition that the jury had convicted her inadvertently by bungling the verdict forms—because the judges feared adverse publicity if they were perceived as lenient.52 Conversely, in A Child’s History of England, Charles Dickens idealized an impartial judge through the lens of a “doubtful” story in which a “brave and generous,” though “wild and dissipated,” prince drew a sword on the chief justice “because [the judge] was firm in dealing impartially with one of [the prince’s] dissolute companions.”53 The justice had the prince arrested, and the prince acquiesced, which offered King Henry, and Dickens, a teaching moment: “Happy is the monarch who has so just a judge, and a son so willing to obey the laws.”54 Emblematic of the jurist whose internal political interests compromise his impartiality is the iconic “hanging judge.” Robert Louis Stevenson’s description of Lord Hermiston, in The Weir of Hermiston, is illustrative: “[H]e did not affect the virtue of impartiality; this was no case for refinement; there was a man to be hanged, he would have said, and he was hanging him. Nor was it possible to see his lordship, and acquit him of gusto in the task.”55 The hanging judge’s impartiality is thus undermined by his ideological predisposition to convict and execute, reflected in his indifference to the rule of law. A vivid, if disturbing, illustration comes from the story files of Judge Roy Bean: “Carlos Robles, this court finds you charged with a grave offense against the peace and dignity of the sovereign State of Texas, to wit: cattle rustlin’. How do you plead?” Unable to understand a word of English the defendant uttered a few sentences in Spanish. “Court accepts yore [sic] plea of guilty. The jury will now deliberate, and if'n it brings in a verdict short of hangin’ it’ll be declared in contempt. Gentlemen, what’s yore [sic] verdict?”

51. John 19:12 (New International Version). 52. LEO TOLSTOY, RESURRECTION 95–97 (Anthony Briggs ed. & trans., Penguin Classics 2009) (1899). 53. 1 CHARLES DICKENS, A CHILD’S HISTORY OF ENGLAND 268 (1853). 54. Id. 55. ROBERT LOUIS STEVENSON, WEIR OF HERMISTON 46 (Charles Scribner’s Sons 1907) (1896).

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“Guilty as hell, your honor.”56 Contemporary analogs: If the hanging judge was emblematic of the nineteenth century jurist whose internal ideological predilections compromised his impartiality, the twenty-first century analog is the “activist judge.” The activist judge, whose constitutional and statutory analyses are polluted by her ideological biases, is not typically the stuff of riveting legal thrillers, but has achieved a prominent place in American political theater. At the turn of the twenty-first century, conservative court critics decried liberal activists—primarily in the federal district and circuit courts—who allegedly disregarded the law and substituted their political preferences. More recently, critics on the political left have responded in kind, by accusing the Supreme Court of conservative judicial activism.57 To address the problem of “activist” judges who compromise their impartiality by acting upon their internal political interests, court critics have, with mixed success, undertaken to impeach wayward judges, cut their budgets, curtail their jurisdiction, solicit their views (if not their commitments) on issues they are likely to decide as judges, and subject them to other means of political accountability.58 Court defenders, in turn, have characterized such efforts as aimed at manipulating judges into making decisions that the critics favor; put another way, court critics stand accused of seeking to control judges by exerting external political influence on the judges targeted, to the detriment of judicial independence and impartiality.59 In an age when “[w]e are all legal realists now,”60 it is perhaps unsurprising that the public would thus perceive political influences as posing two distinct threats to judges’ impartiality: internally, from judges who skew their rulings to implement their own political agendas, and externally, from outsiders who seek to implement their political agendas by conforming judges to their will. D. The Judge Who Has a Personal Bias Bias is useful in this typology primarily as a residual category—a bin for forms of partiality that cannot otherwise be categorized as a judge’s personal, relational, or political interest in the outcome of a proceeding.61 A prominent subset of cases left for the “bias” category is

56. RICHARD ERDOES, SALOONS OF THE OLD WEST 138 (1979). 57. See Charles Gardner Geyh, The Criticism and Speech of Judges in the United States, in JUDICIARIES IN COMPARATIVE PERSPECTIVE 257, 263–66 (H.P. Lee ed., 2011) (documenting attacks on judges). 58. See id. 59. See generally Charles G. Geyh, Can the Rule of Law Survive Judicial Politics?, 97 CORNELL L. REV. 191 (2012) [hereinafter Geyh, Can the Rule of Law Survive?]. 60. Joseph William Singer, Legal Realism Now, 76 CALIF. L. REV. 465, 467 (1988). 61. Bias attributable to the judge’s prior relationship with an individual (rather than with

102 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 506 FLORIDA LAW REVIEW [Vol. 65 status- or group-based prejudice: unjustifiable fondness for or antipathy toward parties or other participants in the process because of their status as members of a particular race, ethnicity, class, gender, or other identifiable group. The forms of status- or group-based judicial bias with the most distinguished pedigree are wealth and class. At its basest level, judicial bias in favor of the wealthy and against the poor has one foot in corrupt judicial self-interest, discussed earlier: when judges award decisions to the highest bidder, rich parties win and poor parties lose. But the problem, as depicted over time, has transcended corruption. One scholar has described the work of medieval poets who decried “class justice,” in which “a poor man can hardly ever win against a rich man or a nobleman, no matter how just his case may be.”62 To counter the perceived problem, English judges took an oath as early as the fourteenth century “to do equal law and execution of right to all . . . rich or poor,”63 and in the seventeenth century, Sir Matthew Hale’s code of judicial conduct addressed this ongoing concern with the rule “[t]hat I be not biassed with compassion to the poor, or favor to the rich.”64 In Amelia, published in 1751, Henry Fielding described a day in the court of Justice Thrasher, who: convicted a “poor woman,” falsely accused of streetwalking, after rejecting her truthful defense; dismissed charges against a “genteel young man and woman,” after “declar[ing] with much warmth that the fact [recounted in the charge against them] was incredible and impossible”; and convicted a “shabbily dressed” man, rejecting his truthful claim that the crime had been perpetrated by two others “who appeared to be men of fortune.”65 While Fielding noted that some of these proceedings were tainted by bribery, his final, sarcastic indictment of Thrasher went not to his corruption but to his bias against the poor: “In short, the magistrate had too great an honour for truth to suspect that she ever appeared in sordid apparel; nor did he ever sully his sublime notions of that virtue by uniting them with the mean ideas of poverty and distress.”66 In William Godwin’s Things as They Are; or, The Adventures of Caleb Williams, published in 1794, the protagonist was a secretary, whose employer was a wealthy man who committed murder and framed the secretary for robbery.67 When the secretary defended himself by the group to which the individual belongs), for example, is a form of relational interest; bias attributable to the issues a party raises is a form of political interest. 62. Meder, supra note 23, at 438. 63. Prest, supra note 25, at 71. 64. Quoted in LORD CAMPBELL, supra note 13, at 208. 65. 1 HENRY FIELDING, AMELIA 8–9 (J.M. Dent & Sons Ltd. 1962) (1751). 66. Id. at 10. 67. See WILLIAM GODWIN, THINGS AS THEY ARE; OR, THE ADVENTURES OF CALEB WILLIAMS (David McCracken, ed., Oxford Univ. Press 1982) (1794).

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reporting the truth, the judge summarily rebuffed him: A fine time of it indeed it would be, if, when gentlemen of six thousand a year take up their servants for robbing them, those servants could trump up such accusations as these, and could get any magistrate or court of justice to listen to them! . . . There would be a speedy end to all order and good government, if fellows that trample upon ranks and distinctions in this atrocious sort, were upon any consideration suffered to get off.68 Ethnic, racial, and gender bias have likewise been featured in depictions of judicial conduct. In Amelia, Justice Thrasher found a defendant guilty, explaining: “Sirrah, your tongue betrays your guilt. You are an Irishman, and that is always sufficient evidence with me.”69 In the 1898 nonfictional polemic J’Accuse!, Emile Zola attacked the French administration of justice for its court martial of Captain Alfred Dreyfus, which Zola attributed to a “‘dirty Jew’ obsession that is the scourge of our time.”70 In perhaps his most infamous tale, Judge Roy Bean purportedly acquitted a defendant of murder, reasoning that “I find the law very explicit on murdering your fellow man, but there’s nothing here about killing a Chinaman. Case dismissed”—an episode famous for its grotesque racial bias, but complicated by an overlay of political partiality: Bean was surrounded by an angry group of the perpetrator’s friends, who were intent on violence if their comrade was convicted.71 And in the climactic trial scene of Mary Wollstonecraft’s eighteenth century novel The Wrongs of Woman, a misogynist judge trivialized the protagonist’s suffering at the hands of an abusive husband in a marriage she could not escape.72 “What virtuous woman thought of her feelings?,” he asked rhetorically, answering that “[i]t was her duty to love and obey the man chosen by her parents and relations, who were qualified by their experience to judge better for her, than she could for herself.”73 What message do these depictions of judicial bias convey? Sometimes, as with Judge Roy Bean, they may be nothing more than stories about a judge with a bias—the isolated bad (if colorful) apple,

68. Id. at 276. 69. FIELDING, supra note 65, at 8. 70. Emile Zola, J’Accuse!, L’AURORE (Paris, Fr.), Jan. 13, 1898, available at http://www.oxygenee.com/Zola-and-Dreyfus.pdf. 71. Shawn E. Tuma, Law in Texas Literature: Texas Justice—Judge Roy Bean Style, 21 REV. LITIG. 551, 561 (2002). 72. See MARY WOLLSTONECRAFT, THE WRONGS OF WOMAN 129–34 (W.W. Norton & Co. ed., 1994) (1798). 73. Id. at 133.

104 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 508 FLORIDA LAW REVIEW [Vol. 65 whose misconduct is meant to say nothing about judges generally. At other times, however, the biased judge is portrayed as a representative sample from a bad barrel. Of Justice Thrasher, Fielding remarked that “[t]he higher we proceed among our public officers and magistrates, the less defects of this kind will, perhaps, be observable”74—which by negative implication meant that Thrasher’s defects were widely observable among “lower” magistrates. Godwin’s magistrate was the foil for an even more sweeping indictment: “And this at last was the justice of mankind!,” Caleb Williams railed, despairing that “six thousand a year shall protect a man from accusation; and the validity of an impeachment shall be superseded, because the author of it is a servant!”75 Similarly, Wollstonecraft’s judge was written into the climax of The Wrongs of Woman as emblematic of his gender and of the bias of men toward women. These categorical claims of judicial partiality imply a more intractable problem: impartiality is illusory. Judges are elites captured by their own biases, who will protect the interests of fellow elites at the expense of the general public. The sentiment is succinctly expressed in the African proverb: “Corn can’t expect justice from a court composed of chickens.”76 In Spoon River Anthology, published in 1916, Edgar Lee Masters made a similar, if narrower, point in an anecdote about a diminutive judge for whom “it was natural” to “ma[k]e it hard” on “the giants” who appeared before him, given the teasing the judge had endured earlier in life.77 Lighthearted though this story may be, it is but a short walk from there to the darker conclusion that judges are ensnared by the same prejudices that afflict us all—prejudices attributable to the influences of their class, gender, race, ethnicity, and life experiences. Some nineteenth century thinkers made that very point. Robert Green Ingersoll declared that “[w]e must remember that we have to make judges out of men, and that by being made judges their prejudices are not diminished and their intelligence is not increased.”78 David Dudley Field echoed, “Judges are but men, and are swayed like other men by vehement prejudices. This is corruption in reality, give it whatever other name you please.”79 Contemporary analogs: The civil rights movement of the 1950s and 1960s has been retold in books and films that feature racist state judges

74. FIELDING, supra note 65, at 6. 75. GODWIN, supra note 67, at 277. 76. MADISON MCGRAW, JUSTIFY THE MEANS 128 (2003). 77. Edgar Lee Masters, Judge Selah Lively, in SPOON RIVER ANTHOLOGY 94 (Bartleby 1999) (1916), available at http://www.bartleby.com/84/94.html. 78. Robert G. Ingersoll, Speech in Washington, D.C. (Oct. 22, 1883). 79. David Dudley Field, A Few Words on Judicial Integrity, 6 ALBANY L.J. 265, 265 (1872).

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of the Jim Crow era and their heroic federal counterparts who weathered local animus and implemented new civil rights laws.80 In the 1980s and 1990s, court systems undertook racial and gender bias studies that documented problems including, but not limited to, judges.81 The critical legal studies movement of the 1980s revisited the ancient problem of class bias in systemic terms, arguing that rules of law were written, enforced, and upheld by elites, including judges, who protect entrenched interests of the powerful at the expense of the powerless.82 Critical race and feminist theories arose out of the critical legal studies movement and explored similar themes in the context of race, gender, ethnicity, and sexual orientation.83 Even more recently, minority judges have found themselves in the crosshairs of high-profile claims that their impartiality is compromised by bias: can a gay judge in a stable relationship fairly adjudicate the constitutionality of a law banning same-sex marriage?84 Is it problematic for a Latina judge to say that she will analyze cases differently than her white, male counterparts?85

II. THE DIMENSIONS OF IMPARTIALITY Writers of the nineteenth and twentieth centuries had already come to the unremarkable conclusion that judges were human beings, and as such were subject to human prejudices.86 Social science research has since documented that judges, particularly Justices on the U.S. Supreme Court, are influenced by their ideological predilections.87 Some political

80. As to books, see, for example, JACK BASS, UNLIKELY HEROES: A VIVID ACCOUNT OF THE IMPLEMENTATION OF THE BROWN DECISION IN THE SOUTH BY SOUTHERN FEDERAL JUDGES COMMITTED TO THE RULE OF LAW (1981). As to films, see, for example, MISSISSIPPI BURNING (Orion Pictures 1988) (depicting FBI agents investigating the murder of civil rights workers). 81. See generally Blake D. Morant, Introductory Essay: The Relevance of Gender Bias Studies, 58 WASH. & LEE L. REV. 1073 (2001) (discussing racial and gender bias studies); Myra C. Selby, Examining Race and Gender Bias in the Courts: A Legacy of Indifference or Opportunity?, 32 IND. L. REV. 1167 (1999). 82. Allan C. Hutchinson, Introduction to CRITICAL LEGAL STUDIES 1, 4 (Allan C. Hutchinson ed., 1989). 83. See, e.g., Alan Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, in CRITICAL LEGAL STUDIES, supra note 82, at 120–36; Catherine A. MacKinnon, Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence, in CRITICAL LEGAL STUDIES, supra note 82, at 56– 76. 84. See Leff, supra note 5. 85. Julie Hirschfield Davis, Sotomayor Is Confirmed in Historic Vote by Senate, CHARLESTON GAZETTE (W. Va.), Aug. 7, 2009, at A1 (noting that opponents of Justice Sotomayor during her nomination process repeatedly cited a speech in which “she hoped a ‘wise Latina’ judge would usually make better decisions than a white man”). 86. See supra notes 77–79 and accompanying text. 87. JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL xvi (1993) (“[W]e demonstrate that . . . the facts of the case and the ideology of the justices . . . successfully explain and predict the votes of Supreme Court justices.”).

106 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 510 FLORIDA LAW REVIEW [Vol. 65 scientists have discussed the ways in which judges strategically implement their policy preferences,88 while others have argued that the choices judges make are influenced by the audiences whose approval they seek.89 Studies of heuristics have shown that judges, like the general population, are apt to take mental shortcuts in their decision making by acting upon a range of subconscious biases.90 More recent research has documented the impact of judges’ race and gender on their decision making in discrimination cases.91 In short, perfect judicial impartiality does not exist. If perfect judicial impartiality is the elusive ideal, the more pragmatic quest is for “impartial enough.” That begs the question, “impartial enough for what?” The answer turns logically on the goal judicial impartiality seeks to achieve, a goal that judges and lawyers everywhere would identify, almost reflexively, as “the rule of law.” Insofar as we remove partiality from the decision making equation, what is left are the merits of the dispute before the judge—merits to be decided on the basis of applicable facts and law. And so, efforts to define the role of the judge in government typically emphasize the need for impartial judges to promote the rule of law.92 In a world where imperfect impartiality is a constant, however, saying that impartial judges are needed to uphold the law merely skirts the question of how much partiality can be tolerated before rule of law objectives are thwarted to an unacceptable degree. Such an inquiry is further complicated by the realization that the law itself often is what it is because judges previously said that it was—judges who were influenced to an uncertain degree by their ideological and other

88. See LEE EPSTEIN & JACK KNIGHT, THE CHOICES JUDGES MAKE xiii (1998). 89. LAWRENCE BAUM, JUDGES AND THEIR AUDIENCES: A PERSPECTIVE ON JUDICIAL BEHAVIOR 4 (2006) (“I argue that judges care about the regard of salient audiences because they like that regard in itself, not just as a means to other ends. Further . . . judges’ interest in what their audiences think of them has fundamental effects on their behavior as decision makers.”). 90. See, e.g., Chris Guthrie et al., Blinking on the Bench: How Judges Decide Cases, 93 CORNELL L. REV. 1, 3–6, 15, 17–18, 27 (2007); Chris Guthrie et al., Inside the Judicial Mind, 86 CORNELL L. REV. 777, 779–84 (2001); Jeffrey J. Rachlinski, A Positive Psychological Theory of Judging in Hindsight, 65 U. CHI. L. REV. 571, 571–75 (1998); Jeffrey J. Rachlinski, Heuristics and Biases in the Courts: Ignorance or Adaptation?, 79 OR. L. REV. 61, 61, 64–65 (2000). 91. See, e.g., Pat K. Chew & Robert E. Kelley, Myth of the Color-Blind Judge: An Empirical Analysis of Racial Harassment Cases, 86 WASH. U. L. REV. 1117 (2009); Jennifer L. Peresie, Note, Female Judges Matter: Gender and Collegial Decisionmaking in the Federal Appellate Courts, 114 YALE L.J. 1759 (2005). 92. MODEL CODE OF JUDICIAL CONDUCT Pmbl. (2007) [hereinafter MODEL CODE] (“The United States legal system is based upon the principle that an independent, impartial, and competent judiciary . . . will interpret and apply the law that governs our society.”); A.B.A, JUSTICE IN JEOPARDY: REPORT OF THE AMERICAN BAR ASSOCIATION COMMISSION ON THE 21ST CENTURY JUDICIARY 9 (2003) (“[Judges] must, in short, be impartial if we are to be governed by the rule of law rather than judicial whim.”).

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prejudices. A better understanding of how impartial a judge must be to uphold the rule of law requires an appreciation for who the beneficiaries of an impartial judiciary are. Put another way, whether a judge is “impartial enough” to uphold the law may depend on who we are trying to convince, why they care, and what is needed to convince them. As elaborated upon below, judicial impartiality serves three distinct audiences, giving rise to three distinct dimensions of impartiality: (1) parties and the procedural dimension, (2) the public and the political dimension, and (3) judges and the ethical dimension. Parties: At an elemental level, judges resolve disputes for the benefit of parties to those disputes. The stories of corrupt, conflicted, or biased judges, recounted in Part I, often cast losing parties as the ultimate victims—the martyrdom of Jesus Christ and Joan of Arc at the hands of partial judges being extreme examples. In the heat of battle, disputants may regard an impartial judge as their second choice; it would be best to have a partial judge who will rule in their favor. An impartial judge, however, remains preferable to a partial one who will rule against them, and if neither disputant controls the judge, an impartial judge is the safest alternative. Psychologist Tom Tyler has found that parties are more apt to accept adverse outcomes in litigation if they feel that they were subject to a fair process featuring a judge they regarded as impartial.93 For parties, then, the interest in judicial impartiality is personal to them, acutely felt, case-specific, and shaped by firsthand experience. The focus of their attention is on the process employed to litigate their cases, and whether that process protected them adequately from the perils of partiality summarized in Part I. This, then, is the procedural dimension of impartiality. Public: Judges may adjudicate disputes between private parties, but they are more than private dispute resolution specialists. They are public officials who together comprise a separate and independent branch of government, whose constitutional role is to serve as impartial guardians of the law. As such, their institutional legitimacy logically depends on the continuing support of the public that judges serve, which in turn depends on whether the public regards its judges as fulfilling their constitutional roles. If the decisions judges make lead the public to worry that judges are partial in ways that undermine their commitment to the rule of law, as the public defines it, the judiciary’s institutional legitimacy may suffer. Thus, in the Celebrated Cases of Judge Dee, discussed in Part I, the public is portrayed as the ultimate beneficiary of an impartial judiciary, because partial judges cannot “bring peace to the

93. See TOM R. TYLER ET AL., SOCIAL JUSTICE IN A DIVERSE SOCIETY 83 (1997); Tom R. Tyler, The Role of Perceived Injustice in Defendants’ Evaluations of Their Courtroom Experience, 18 LAW & SOC’Y REV. 51, 69–70 (1984).

108 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 512 FLORIDA LAW REVIEW [Vol. 65 common people.”94 Relative to the parties, then, the public’s interest in an impartial judiciary is less personal than philosophical or ideological, more diffuse than acute, systemic rather than case-specific (although highly publicized cases can breed systemic concerns), and shaped less by firsthand experience than by impressions gleaned from public discussions on the acceptability of judges to the body politic. In other words, the focus of the public’s attention is on the impartiality of judges in relation to the role they play in the administration of government, which is “political” in the original sense of the term. This is the political dimension of impartiality. The Judge: For over two thousand years, being a good judge has meant being an impartial judge.95 Impartiality is a defining feature of the judicial role in ways it is not for other public officials: whereas legislators, city council members, mayors, governors, and presidents should be partial to their constituents’ preferences, judges should not. In the context of its procedural and political dimensions, impartiality is an instrumental value that serves other ends; being a “good judge” who impartially upholds the law is important to ensure a fair process to parties and to promote public confidence in the courts. There remains, however, an extent to which being “good” is an irreducible end in itself96: the corrupt or biased judge is simply “wicked,” to borrow Chaucer’s adjective from The Physician’s Tale.97 To the extent that being good is its own reward, judges themselves are the beneficiaries of their own impartiality. As adjudicators at the center of the litigation process, judges have an interest in the procedural dimension of impartiality; as representatives of the third branch of government, judges desire institutional legitimacy and consequently have an interest in the political dimension of impartiality, too. But as women and men whose self-identity as good judges is tethered to the oath they have sworn to be impartial—an oath judges have taken for centuries—there is a third dimension of impartiality: an ethical dimension. Thinking about impartiality in terms of its three dimensions yields a critically important insight: different dimensions may yield different answers to the question, how impartial is impartial enough? Depending on the context, the impartiality needed to provide parties with a fair hearing in the procedural dimension may be different than that needed

94. See supra note 26 and accompanying text. 95. See supra note 20 and accompanying text. 96. Judicial independence is often characterized as an instrumental value that furthers other ends, such as the rule of law, and not as an end in itself. Impartiality, however, is different. Judicial independence qua freedom from external control is a privilege subject to abuse, while impartiality, as an unbiased, unprejudiced state of mind, is not. Therefore, in relation to the judicial role, independence cannot be characterized as an unqualified good in the way that impartiality can. 97. See CHAUCER, supra note 28.

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to reassure the public in the political dimension, which may, in turn, differ from the impartiality required to ensure that judges are behaving honorably in the ethical dimension. To better understand the different ways in which the partiality problems identified in Part I are evaluated depending upon the dimension of impartiality at issue, it is helpful to look at the ways in which judicial impartiality is regulated.

III. REGULATING THE DIMENSIONS OF IMPARTIALITY The procedural, ethical, and political dimensions of judicial impartiality have been regulated in different but overlapping ways. The distinct means by which regulatory schemes manage judicial impartiality can, for the most part, be explained with reference to the varying goals of promoting judicial impartiality in the three dimensions: to ensure procedural fairness for parties in the litigation process; to encourage judges to conduct themselves honorably and ethically; and to preserve public confidence in the courts. A full appreciation of these regulatory mechanisms, however, also requires that they be understood against the backdrop of historical, pragmatic, and other constraints that have affected their development. I elaborate here on the primary mechanisms that regulate impartiality in each dimension: due process, disqualification, and rules of litigation procedure in the procedural dimension; codes of judicial conduct and disciplinary processes in the ethical dimension; and removal, selection, and oversight in the political dimension. In so doing, I do not mean to imply that the compartmentalization of judicial impartiality is tidy.98 Mechanisms that I have assigned to one dimension can serve the interests of another. For example, disqualification rules that parties exploit to protect their rights to an impartial judge in the procedural dimension also serve as standards of good judicial conduct in the ethical dimension.99 Codes of judicial conduct, while centered in the ethical dimension, include rules oriented toward ensuring a fair process for parties100 and promoting public confidence in the courts,101 which

98. Professor Stephen Burbank has expressed a preference for “the messiness of lived experience to the tidiness of unrealistically parsimonious models.” Stephen B. Burbank, On the Study of Judicial Behaviors: Of Law, Politics, Science, and Humility, in WHAT’S LAW GOT TO DO WITH IT?: WHAT JUDGES DO, WHY THEY DO IT, AND WHAT’S AT STAKE 41, 53 (Charles Gardner Geyh ed., 2011). While Professor Burbank was writing about quantitative models, his point applies equally to theory. There is a line between simplification and oversimplification that scholars must not cross. 99. Compare 28 U.S.C. § 455 (2006), with U.S. COURTS, CODE OF CONDUCT FOR UNITED STATES JUDGES Canon 3C (2011), available at http://www.uscourts.gov/Viewer.aspx?doc=/us courts/RulesAndPolicies/conduct/Vol02A-Ch02.pdf. 100. See, e.g., MODEL CODE, supra note 92, R. 2.2 & cmt. 1 (requiring judges to “perform all duties of judicial office . . . impartially,” to “ensure impartiality and fairness to all parties”); id. R. 2.6 & cmt. 1 (requiring that judges guarantee all parties “the right to be heard according to

110 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 514 FLORIDA LAW REVIEW [Vol. 65 overlap with the procedural and political dimensions, respectively. Impeachment, while a remedy for judges whose partiality violates the public trust in the political dimension, also delineates standards of judicial conduct that inform the ethical dimension.102 Notwithstanding such messiness at the margins, thinking about judicial impartiality in relation to the dimensions it occupies is worth the trouble because it elucidates the complexities and seeming contradictions that pervade the subject and gave rise to the imponderables that introduced this Article. A. Regulating Impartiality in the Procedural Dimension There are three basic procedural mechanisms that are brought to bear to preserve impartiality for the benefit of parties to litigation: (1) the Due Process Clauses of the federal and state constitutions, (2) disqualification processes, and (3) rules of litigation procedure. Understanding the scope and limits of these mechanisms requires an appreciation for the relationship between their ends and means, and the constraints under which they operate. All three mechanisms in the procedural dimension are implemented by judges, as part of a larger mission to administer justice on a case-by- case basis. As a consequence, the pursuit of impartiality is necessarily tempered by the constraints of broader systemic goals. Achieving near- perfect impartiality among judges assigned to hear cases through the application of overly rigorous processes that compound costs, exacerbate delays, and compromise the supply of available judges would purge partiality at the expense of thwarting access to justice, and thus rob Peter to pay Paul. Hence, the three procedural mechanisms that promote judicial impartiality must be construed, applied, and ultimately limited in light of the systemic objective of ensuring the effective and expeditious administration of justice. Thus, the process that is “due” parties under the Fifth and Fourteenth Amendments is constrained by an assessment of the burdens that additional process would impose.103 Ethics rules forbid recusal except when disqualification is required because “[j]udges must be available to decide the matters that come before the court,”104 while the “rule of necessity” directs otherwise law,” which is “an essential component of a[n] . . . impartial system of justice”). 101. See, e.g., id. R. 1.2 (“A judge shall act at all times in a manner that promotes public confidence in the . . . impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”). 102. See infra notes 204–209 and accompanying text (discussing impeachment as a remedy for less than “good” behavior). 103. Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (“[T]he specific dictates of due process generally requires consideration of . . . the Government’s interest, including . . . the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”). 104. MODEL CODE, supra note 92, R. 2.7, cmt. 1.

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disqualified judges to hear cases when no other judge would be qualified to sit.105 The first rule in the Federal Rules of Civil Procedure emphasizes that the rules seek not only “just” determinations, but “speedy[] and inexpensive” ones as well.106 At a minimum, these systemic constraints render the procedural dimension ill-suited to address the sweeping claims of partiality described in Part I—that judges are activists whose ideological predilections create political conflicts of interest that undermine their impartiality, or that judges are unacceptably biased because of their class, race, gender, or other status. And so, attempts to remove judges from cases in litigation on the basis of such categorical claims have fallen on deaf ears.107 As elaborated upon next, the three mechanisms in the procedural dimension are best suited to ameliorate judicial partiality in more limited, narrowly targeted, case-specific ways. 1. The Due Process Clauses The Fifth and Fourteenth Amendments of the U.S. Constitution prohibit the national and state governments from depriving persons of their life, liberty, or property without due process of law.108 In addition, many state constitutions have a due process clause of their own.109 In popular culture, an impartial adjudicator has been a defining feature of a fair judicial process for more than two thousand years.110 It is thus unsurprising that the U.S. Supreme Court has interpreted the Due Process Clause in a manner consistent with that ancient understanding by declaring that “[a] fair trial in a fair tribunal is a basic requirement of due process,”111 and that the Due Process Clause guarantees parties the “right to have an impartial judge.”112 The Due Process Clauses articulate broad principles, but are of only modest importance in the daily regulation of judicial impartiality in the procedural dimension. The circumstances in which the Court has actually held that the “right to have an impartial judge” was violated are few and limited. The Court has reversed judgments where a state judge has: kept the fines he assessed against parties that appeared before

105. See CHARLES GARDNER GEYH, FED. JUDICIAL CTR., JUDICIAL DISQUALIFICATION: AN ANALYSIS OF FEDERAL LAW 13–15 (2d ed. 2010) [hereinafter GEYH, DISQUALIFICATION], available at http://www.fjc.gov/public/pdf.nsf/lookup/judicialdq.pdf/$file/judicialdq.pdf. 106. FED. R. CIV. P. 1. 107. See FLAMM, supra note 9, § 10.3. 108. See U.S. CONST. amend V; id. amend XIV. 109. See Anthony B. Sanders, The “New Judicial Federalism” Before its Time: A Comprehensive Review of Economic Substantive Due Process Under State Constitutional Law Since 1940 and the Reasons for its Recent Decline, 55 AM. U. L. REV. 457, 467 (2005). 110. See supra Part I. 111. In re Murchison, 349 U.S. 133, 136 (1955). 112. Tumey v. Ohio, 273 U.S. 510, 535 (1927).

112 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 516 FLORIDA LAW REVIEW [Vol. 65 him;113 ruled on the merits of issues that he himself was litigating as a private party in an unrelated proceeding;114 presided over criminal contempt proceedings in which the defendants’ allegedly contemptuous conduct had been directed toward the judge;115 and heard a case in which a party’s recent support for the judge’s election campaign was so substantial as to create a probability of bias.116 Such limited application is attributable to historical, pragmatic, and prudential constraints. Historically, civil and common law systems each afforded parties ample opportunity to challenge the impartiality of their respective fact- finders—judges under civil law and jurors under common law.117 English common law judges, however, were entitled to an almost ironclad presumption of impartiality, subject to a lone exception for cases in which they had an economic interest in the outcome.118 Two and a half centuries later, the four dissenting Justices in Caperton v. A.T. Massey Coal Co. pointed to this ancient presumption in support of their argument that a probability of judicial bias does not violate due process,119 a point the majority deflected by emphasizing how exceptional and extreme the facts of Caperton were.120 In other words, the ancient presumption of impartiality limits the application of the Due Process Clause to deeply rooted exceptions and truly outrageous circumstances. Pragmatically, some forms of partiality are more manageable to regulate than others. For example, personal conflicts of interest—the first form of partiality that the Supreme Court recognized as implicating due process concerns121—can be delineated by clear(ish) rules triggered whenever a conflict arises. Divining judicial bias, in contrast, requires an assessment of the judge’s subjective state of mind—a difficult task that courts have long been reluctant to undertake.122 In Caperton, the

113. See, e.g., id. at 523. 114. See, e.g., Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 823–24 (1986). 115. See, e.g., Taylor v. Hayes, 418 U.S. 488, 503 (1974); Mayberry v. Pennsylvania, 400 U.S. 455, 466 (1971); Murchison, 349 U.S. at 139. 116. Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252, 2264–65, 2267 (2009). 117. See Charles Gardner Geyh, Why Judicial Disqualification Matters. Again., 30 REV. LITIG. 671, 677–78 (2011). 118. John P. Frank, Disqualification of Judges, 56 YALE L.J. 605, 611–12 (1947). 119. Caperton, 129 S. Ct. at 2267 (Roberts, C.J., dissenting) (“There is a ‘presumption of honesty and integrity in those serving as adjudicators’ . . . . All judges take an oath to uphold the Constitution and apply the law impartially, and we trust that they will live up to this promise.”). 120. Id. at 2263, 2265 (majority opinion) (noting that “this is an exceptional case” and “[t]he facts now before us are extreme by any measure”). 121. See Tumey v. Ohio, 273 U.S. 510, 523 (1927). 122. See Inhabitants of Northampton v. Smith, 52 Mass. (11 Met.) 390, 396 (1846) (“[A]n interest in a question or subject matter, arising from feeling and sympathy, may be more efficacious in influencing the judgment, than even a pecuniary interest; but an interest of such a character would be too vague to serve as a test . . . .”); Frank, supra note 118, at 611–12

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majority sought to make such assessments more manageable by crafting an objective “probability” of bias standard for assessing due process claims.123 Chief Justice John Roberts, writing on behalf of the four dissenters, was unconvinced and itemized forty questions that the new standard left unanswered, leading him to the conclusion that regulating probable bias was unworkable.124 The majority’s rejoinder was to emphasize, repeatedly, how rarely its probable bias standard would be triggered.125 Prudentially, the Due Process Clause is a backstop, or last resort, constrained by respect for separation of powers and federalism concerns, that “demarks only the outer boundaries of judicial disqualifications.”126 While the Fifth Amendment’s Due Process Clause presumably guarantees litigants the right to an impartial judge in federal court, federal courts have long avoided constitutional questions when cases can be resolved on nonconstitutional grounds.127 Given the availability of disqualification under federal statute,128 then, recourse to the Fifth Amendment is unnecessary. The need for state courts to ameliorate judicial partiality through resort to the Fourteenth Amendment or the due process clauses of their own constitutions is similarly obviated by the availability of state disqualification rules.129 Although the Fourteenth Amendment affords federal courts the opportunity to address the qualifications of state judges, principles of comity and federalism have restricted the reach of Fourteenth Amendment claims. In Tumey v. Ohio,130 for example, the Court ruled that the Due Process Clause forbade a judge from presiding over a case in which he had a financial conflict of interest, but not before opining that “[a]ll questions of judicial qualification may not involve constitutional validity. Thus matters of kinship, personal bias, state policy, remoteness of interest would seem generally to be matters

(“English common law practice at the time of the establishment of the American court system was simple in the extreme. Judges disqualified for financial interest. No other disqualifications were permitted, and bias . . . was rejected entirely.”). 123. Caperton, 129 S. Ct. at 2265. 124. Id. at 2267, 2269–72 (Roberts, C.J., dissenting). 125. See id. at 2265–67 (majority opinion). 126. Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 828 (1986). 127. Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346–48 (1936) (Brandeis, J., concurring) (“The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.”). 128. 28 U.S.C. § 455 (2006). 129. State courts, like their federal counterparts, adhere to Ashwander avoidance principles. See, e.g., Jack Tuholske, Going With the Flow: The Montana Court’s Conservative Approach to Constitutional Interpretation, 72 MONT. L. REV. 237, 242–43 (2011) (noting that the state supreme court implemented Ashwander principles). 130. 273 U.S. 510 (1927).

114 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 518 FLORIDA LAW REVIEW [Vol. 65 merely of legislative discretion.”131 Given the stories recounted in Part I—which predate when Tumey was decided in 1927, and show a deeply rooted antipathy toward judges who preside in the teeth of relational conflicts and personal biases—the suggestion that kinship and bias did not implicate core due process concerns can only be explained in terms of the historical, pragmatic, and prudential constraints summarized here. 2. Disqualification In the procedural dimension, disqualification rules seek to ensure parties a fair hearing by affording them an opportunity to challenge the impartiality of their assigned judge. As previously noted, disqualification rules likewise serve as standards of conduct in the ethical dimension of impartiality.132 Those standards are more or less uniform across state and federal systems,133 and between procedural and ethical dimensions,134 with the Model Code of Judicial Conduct serving as a template.135 The Model Code makes provision to disqualify judges for many of the chronic partiality problems recounted in Part I. Personal and relational conflicts of interest are addressed by rules requiring disqualification when the judge or the judge’s close relatives are parties,136 lawyers,137 or material witnesses138 in a case; when they have an economic139 or other interest140 in the outcome of the proceeding; under limited circumstances, when the firm141 or governmental entity142 where the judge previously worked appears before her; and when a judge as a judicial candidate receives campaign contributions from

131. Id. at 523. 132. See supra note 99 and accompanying text. 133. See ABA Judicial Disqualification Project, Taking Disqualification Seriously, 92 JUDICATURE 12, 14–15 (2008). 134. For example, the standards for disqualification in 28 U.S.C. § 455, which grants parties a procedural right to challenge a judge’s partiality, are basically the same as the standards in Canon 3C of the Code of Conduct for United States Judges, which regulates disqualification as a matter of judicial ethics. See also GEYH, DISQUALIFICATION, supra note 105, at 2. 135. ABA Judicial Disqualification Project, supra note 133, at 14 (noting that state codes of judicial conduct are based on the Model Code of Judicial Conduct “in the vast majority of states”). 136. MODEL CODE, supra note 92, R. 2.11(A)(2)(a). 137. Id. R. 2.11(A)(2)(b). 138. Id. R. 2.11(A)(2)(d). 139. Id. R. 2.11(A)(3). 140. Id. R. 2.11(A)(2)(c). 141. Id. R. 2.11(A)(6)(a) (requiring disqualification when the judge “was associated with a lawyer who participated substantially as a lawyer in the matter during such association”). 142. Id. R. 2.11(A)(6)(b) (requiring disqualification when the judge “served in governmental employment, and in such capacity participated personally and substantially as a lawyer or public official concerning the proceeding”).

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parties or lawyers in excess of a specified amount.143 Political conflicts of interest are likewise addressed in part by this last rule, insofar as campaign contributions are perceived as an external source of political influence on judicial decision making, and by a rule requiring disqualification when a judge publicly pre-commits herself to reach a particular result in a future case.144 Finally, bias is addressed by rules requiring disqualification when the judge “has a personal bias or prejudice concerning a party or a party’s lawyer.”145 Disqualification is subject to some of the same constraints that shape the scope of due process. Historically, judges have enjoyed the same presumption of impartiality that limits the application of due process analysis.146 Pragmatically, the subjective nature of judicial bias has limited its reach as a traditional ground for disqualification.147 More fundamentally, perhaps, the same judges who administer disqualification rules self-identify collectively as impartial and have done so for millennia; to concede bias under such circumstances is, in effect, to concede failure.148 To offset these constraints, the Model Code calls for disqualification when the judge’s “impartiality might reasonably be questioned,”149 which seeks to avoid problematic inquiries into the judge’s subjective state of mind with an objective standard, and to lessen the stigma of disqualification by focusing on perceived partiality, rather than partiality in fact.150 Because judges are under a separate ethical directive to avoid perceived partiality (as a subset of the duty to avoid the appearance of impropriety), however, judicial ambivalence over disqualification lingers.151 One multistate study showed that judges are least troubled by disqualification for

143. Id. R. 2.11(A)(4). 144. Id. R. 2.11(A)(5). 145. Id. R. 2.11(A)(1). 146. 3 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 361 (“[J]udges or justices cannot be challenged,” because “the law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea.”). 147. FLAMM, supra note 9, § 3.2 (discussing proof problems limiting disqualification for actual bias). 148. See Geyh, Why Judicial Disqualification Matters, supra note 117, at 678–79. 149. MODEL CODE, supra note 92, R. 2.11(A). 150. Geyh, Why Judicial Disqualification Matters, supra note 117, at 690–92. 151. MODEL CODE, supra note 92, R. 1.2 cmt. 5 (directing judges to avoid the appearance of impropriety, and explaining that “[t]he test” for an appearance of impropriety is, among other things, “whether the [judge’s] conduct would create in reasonable minds a perception” that “reflects adversely on the judge’s . . . impartiality”); see also Geyh, Why Judicial Disqualification Matters, supra note 117, at 703–04 (discussing tension between the appearance of partiality in disqualification proceedings, and the ethical directive to avoid the appearance of impropriety).

116 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 520 FLORIDA LAW REVIEW [Vol. 65 traditional conflicts of interest,152 where the rules are relatively clear, and disqualification is automatic when facts giving rise to a conflict are present—for example, when the judge holds stock in the defendant corporation, or the judge’s brother is the plaintiff. Conversely, ambivalence rises with more discretionary inquiries into the judge’s biases or personal relationships with case participants.153 Simply put, because disqualification rules require judges to rule on the partiality of their brethren, and often themselves, judicial construction of those rules can be expected to err on the side of the presumption of impartiality. 3. Rules of Litigation Procedure The law that regulates the way judges decide cases is embodied in procedural rules and statutes that, with exceptions, regulate judicial partiality only indirectly. One obvious exception is state and federal disqualification rules and statutes, which I have already touched upon. A second exception is the judicial oath of office, which, in the federal system at least, is situated among procedural statutes regulating the courts, and pursuant to which judges swear to discharge their duties impartially.154 More generally, however, the law governing litigation procedure implements an adversarial system by means of rules that manage judicial partiality more subtly. The Federal Rules of Civil Procedure (FRCP) abandoned the complex formalities of common law pleading that had thwarted litigants from getting their cases heard on the merits by, among other things, reducing the multiplicity of common law causes of action to a single civil action,155 and reducing the plaintiff’s burden of initial pleading to supplying “a short and plain statement of the claim showing that the pleader is entitled to relief.”156 The paradigmatic merits determination in suits at common law is the jury verdict, which follows a trial where the judge officiates between adversaries. As previously noted, rigorous procedures seek to ensure the impartiality of jurors as fact finders, as contrasted with judges, who enjoy a more robust presumption of impartiality in their traditional role as umpires on questions of law.157 While the FRCP afford judges opportunities to decide cases on the merits prior to trial, those

152. JEFFREY SHAMAN & JONA GOLDSCHMIDT, JUDICIAL DISQUALIFICATION: AN EMPIRICAL STUDY OF JUDICIAL PRACTICES AND ATTITUDES 69 (1995) (“[T]he survey showed a sensitivity to conflicts of interest and a concern for judicial impartiality”). 153. Id. at 1. 154. 28 U.S.C. § 453 (2006) (“I, ___, do solemnly swear . . . that I will faithfully and impartially discharge and perform all the duties incumbent upon me . . . .”). 155. FED. R. CIV. P. 2. 156. Id. at 8(a). 157. See supra note 117–119 and accompanying text.

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opportunities are carefully circumscribed to reduce the risk of uninformed, premature judgments that could fairly be characterized as prejudice. Thus, for example, in a defendant’s motion to dismiss for failure to state a claim, the judge must accept as true all facts alleged in the complaint, and must err on the side of non-dismissal by construing the complaint liberally and “draw[ing] all reasonable inferences in plaintiff’s favor.”158 And at the summary judgment stage, the judge must let the case proceed to trial unless there is “no genuine dispute as to any material fact.”159 At an elemental level, then, the Federal Rules of Civil Procedure and the adversarial process it regulates restrict the authority of judges to act upon their predispositions, prejudices, and personal biases by sharply limiting their opportunities to end cases before the necessary facts can be adduced and the merits explored. Professor Judith Resnik described the underlying problem as one of prejudgment: Deciding at one point in time versus another is not intrinsically faulty unless the assumption is that prejudgment is based upon incomplete or inaccurate information. Prejudgment is suspect in the context of a system that assumes an increase in information over time and designates specific points in time when the act of judging becomes legitimate.160 By necessary implication, prejudgment is illegitimate because judges who lack the information needed to make reasoned determinations on the merits must ground their decisions in under-informed speculation that is prejudiced (and hence, partial) by definition.161 Professor Lon Fuller credited the adversarial process with imposing a structure that controls the judge’s propensity toward premature decisions grounded in personal predilections: An adversary presentation seems the only effective means for combating this natural human tendency to judge too swiftly in terms of the familiar that which is not yet fully known. The arguments of counsel hold the case, as it were, in suspension between two opposing interpretations of it. While the proper classification of the case is thus kept unresolved, there is time to explore all of its peculiarities

158. 2 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 12.34(1)(b) (3d ed. 2012). 159. FED. R. CIV. P. 56(a). 160. Judith Resnik, On the Bias: Feminist Reconsiderations of the Aspirations for Our Judges, 61 S. CAL. L. REV. 1877, 1885 (1988). 161. See supra notes 15–19 and accompanying text.

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and nuances.162 Appellate review operates as another indirect procedural check on partiality. Appellate review is commonly justified in terms of the need to correct lower court errors.163 To the extent that such errors were caused by judicial partiality, obviously enough, the appellate process corrects those errors, too.164 In mandamus proceedings, when partiality leads to errors so egregious as to constitute usurpations of judicial power, circuit courts have sometimes admonished district judges for their lack of impartiality.165 In addition to reversing erroneous rulings that may have been the product of a partial judge, federal circuit courts of appeal and the U.S. Supreme Court are authorized by statute to remand actions and “require such further proceedings to be had as may be just under the circumstances.”166 The circuit courts of appeal have construed this as permitting remand to a different district judge when the circuit court is concerned about the impartiality of the judge to whom the case was originally assigned.167 As noted at the outset of this Section on the procedural dimension of impartiality, judges have a system to run, which operates as a constraint on the application of procedures aimed at curbing partiality to the extent that such procedures are in tension with the “speedy[] and inexpensive determination” of civil actions.168 Procedures that defer resolution of cases on the merits pending discovery or trial reduce the risk of premature judgment at the expense of protracting proceedings for what may be a very busy court and cost-conscious parties. As elaborated upon in Part IV, the Supreme Court’s recent reinterpretation of pleading standards has made this constraint increasingly salient in the past generation.

162. Lon L. Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV. 353, 383 (1978). 163. GENE SHREVE & PETER RAVEN-HANSEN, UNDERSTANDING CIVIL PROCEDURE 479 (4th ed. 2009) (“One purpose of appeal is to ensure the correctness of lower court dispositions.”). 164. At common law, where disqualification for bias was not permitted, appeal was recognized as the primary remedy for parties victimized by judicial partiality. McCauley v. Weller, 12 Cal. 500, 523–24 (Cal. 1859) (explaining that jurors are disqualified more readily than judges and that the premature “expression of an unqualified opinion on the merits” will disqualify a juror, but not a judge, because a judge’s decisions are subject to appeal). 165. See Charles Gardner Geyh, Informal Methods of Judicial Discipline, 142 U. PA. L. REV. 243, 297–302 (1993). 166. 28 U.S.C. § 2106 (2006). 167. See GEYH, JUDICIAL DISQUALIFICATION, supra note 105, at 109–13 (2010) (discussing the circumstances in which circuit courts have reassigned cases to a different judge under § 2106). 168. FED. R. CIV. P. 1.

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B. Regulating Impartiality in the Ethical Dimension In the ethical dimension, impartiality is an end in itself for the good judge. The ethics of impartiality are managed primarily by codes of judicial conduct and the disciplinary processes that implement them. Elaborating on the ways such codes operate in the ethical dimension is simplified by the fact that the Code of Conduct for United States Judges and the codes of judicial conduct for virtually every state judiciary are derived, to varying degrees, from the American Bar Association’s Model Code of Judicial Conduct.169 Conversely, describing the role of the codes is complicated by the different niches the codes occupy in state and federal systems. The Model Code envisions being used in the manner state systems use it: as a guide to judges on their ethical obligations and as a basis for enforcement in disciplinary proceedings if the Code is violated.170 The federal system, in contrast, uses the Code primarily as a tool for guidance.171 While the Judicial Conference has acknowledged that sometimes Code violations can serve as a basis for discipline,172 the disciplinary process in the federal system operates independently of the Code and subjects judges to limited forms of discipline for “conduct prejudicial to the effective and expeditious administration of the business of the courts.”173 Either way, however, codes of conduct intersect with impartiality in the ethical dimension. The preamble to the Model Code declares its goal to “assist judges in maintaining the highest standards of judicial and personal conduct,”174 and, to that end, the first Canon in the Code directs judges to “uphold and promote the . . . impartiality of the judiciary.”175 The Model Code of Judicial Conduct is replete with rules directing judges to avoid conduct that jeopardizes judicial impartiality in each of the four persistent problem areas described in Part I. In addition to the Code’s disqualification rule—which, as previously described, does double duty in the procedural dimension and includes provisions applicable to each problem area176—additional rules elaborate in more targeted ways on a judge’s ethical obligation to avoid specific partiality

169. Leslie W. Abramson, Appearance of Impropriety: Deciding When a Judge’s Impartiality “Might Reasonably Be Questioned,” 14 GEO. J. LEGAL ETHICS 55, 55 (2000) (noting that forty-nine states have adopted some form of the ABA Model Code). 170. MODEL CODE, supra note 92, pmbl. para. 3. 171. Id. 172. See JUDICIAL CONFERENCE OF THE U.S., RULES FOR JUDICIAL-CONDUCT AND JUDICIAL- DISABILITY PROCEEDINGS 28 (2008), available at http://www.uscourts.gov/library/judicialmis conduct/jud_conduct_and_disability_308_app_B_rev.pdf. 173. 28 U.S.C § 351. 174. MODEL CODE, supra note 92, pmbl. para. 3. 175. Id. Canon 1. 176. See supra notes 133–153 and accompanying text.

120 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 524 FLORIDA LAW REVIEW [Vol. 65 problems.177 By virtue of addressing the same partiality problems enumerated in Part I, regulatory mechanisms in the procedural and ethical dimensions undeniably overlap. Some rules in the Model Code explicitly admonish judges to act impartially and to avoid conduct that calls their impartiality into question.178 If a judge is sanctioned for violating one of these rules in the context of a pending case, the ethical lapse would seem to furnish irrefutable proof that the judge’s “impartiality might reasonably be questioned” for parties seeking disqualification, thereby creating a bridge between the ethical and procedural dimensions. Areas of overlap notwithstanding, impartiality is regarded and regulated differently in the two dimensions. Some conduct that is deemed problematic in the ethical dimension of impartiality is not necessarily problematic in the procedural dimension. There are rules in the Model Code that regulate impartiality less than explicitly, through prophylactic restrictions on judicial speech or conduct that poses an unacceptable risk of real or perceived partiality. For example, the Code directs judges not to “initiate, permit, or consider ex parte communications,” and does so because ex parte communications jeopardize impartiality by affording a party one-sided access to the judge, thereby aligning the judge with that party.179 Another rule

177. Personal conflicts: MODEL CODE, supra note 92, R. 2.4(B) (prohibiting financial interests from influencing the judge’s conduct); id. R. 3.11(B), (C) (prohibiting continuing business relationships with people likely to come before the judge); id. R. 3.13 (restricting gifts judges may receive). Relational conflicts: id. R. 2.4(B) (prohibiting family and social relationships from affecting a judge’s judgment). Political conflicts: id. R. 2.4(A), (C) (prohibiting judges from being “swayed by public clamor or fear of criticism,” and from allowing political interests or relationships to influence their conduct); id. R. 2.2 cmt. 2 (directing judges to “interpret and apply the law without regard to whether the judge approves or disapproves of the law in question”); id. Canon 4 (prohibiting judges from engaging in political activities that are “inconsistent with the . . . impartiality of the judiciary”). Bias: id. R. 2.3(B) (directing judges to avoid bias and prejudice on the basis of race, ethnicity, sex, sexual orientation, socioeconomic status, etc.); id. R. 3.6(A) (prohibiting judicial membership in private organizations that practice invidious discrimination). 178. See, e.g., id. R. 1.2 (directing the judge to “act at all times in a manner that promotes public confidence in the . . . impartiality of the judiciary”); id. R. 2.2 (directing the judge to “perform all duties of judicial office . . . impartially”); id. R. 2.11 (requiring disqualification “in any proceeding in which the judge’s impartiality might reasonably be questioned”); id. R. 2.13 (directing the judge to “exercise the power of appointment impartially”); id. R. 3.1 (directing the judge not to “participate in activities that would appear to a reasonable person to undermine the judge’s . . . impartiality”); id. R. 3.13 (directing the judge not to “accept any gifts, loans, bequests, benefits, or other things of value, if acceptance . . . would appear to a reasonable person to undermine the judge’s . . . impartiality”); id. Canon 4 (directing the judge not to “engage in political or campaign activity that is inconsistent with the . . . impartiality of the judiciary”). 179. Id. R. 2.9; JAMES J. ALFINI ET AL., JUDICIAL CONDUCT AND ETHICS 5-1 (4th ed. 2007) (explaining that ex parte communications are prohibited because “the judge may be exposed to

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admonishes judges to avoid making “any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending,” which an accompanying comment explains is “essential to the maintenance of the . . . impartiality of the judiciary.”180 Sometimes, judges who make improper ex parte communications or public statements on pending cases are ordered to disqualify themselves,181 but not always. As one treatise has summarized the state of the law: “Out-of-court comments about a pending case, like ex parte conversations, are prohibited for other reasons, but they will not be considered disqualifying on the basis of impermissible bias unless they go too far.”182 In the ethical dimension, ex parte communications (with enumerated exceptions) are categorically improper because of the threat they pose to the judge’s real or perceived impartiality. But in the procedural dimension, such communications do not justify the comparably categorical conclusion that the judge’s impartiality might reasonably be questioned for purposes of disqualification. Rather, the communications must be evaluated case by case to see if they go “too far.” Similarly, public comments on pending cases that are improper in the ethical dimension do not trigger automatic disqualification in the procedural dimension; disqualification is largely limited to bias emanating from an extrajudicial source, because it is to be expected that judges will form views about claims and parties during judicial proceedings. Unless a judge’s public comments reveal extrajudicial bias or an utter incapacity to be fair, disqualification is unwarranted.183 Viewed another way, judges who adopt and enforce codes of conduct in the ethical dimension

only one side of an argument or an isolated source of information, to the detriment of the judge’s impartiality”); FLAMM, supra note 9, at 374 (“[W]henever a judge initiates or entertains ex parte communications, a question may reasonably be raised about his ability to be impartial in disposing of questions germane to the subject of such communications. It is, therefore, ordinarily considered improper for a judge to either initiate or consider such communications during the course of a proceeding, except to the limited extent authorized by law.”). 180. MODEL CODE, supra note 92, R. 2.10 & cmt. 1. 181. See, e.g., United States v. Microsoft Corp., 253 F.3d 34, 116–18 (D.C. Cir. 2001) (requiring disqualification for statements to reporters); FLAMM, supra note 9, at 374–75 (“[W]here a judge violates this rule [against ex parte communications], he is ordinarily obliged to recuse himself from presiding over that proceeding . . . .”). 182. ALFINI ET AL., supra note 179, at 4-24; see also FLAMM, supra note 9, at 406 & n.2 (“[T]he fact that a judge has engaged in ex parte communications, standing alone, is not necessarily sufficient to warrant disqualification . . . .”); LESLIE W. ABRAMSON, JUDICIAL DISQUALIFICATION UNDER CANON 3C OF THE CODE OF JUDICIAL CONDUCT 27, 29–30 (2d ed. 1986). 183. United States v. Barry, 961 F.2d 260, 263–65 (D.C. Cir. 1992); ALFINI ET AL., supra note 179, at 4-24 (“Even strong statements made out-of-court about a pending case are not disqualifying if they do not stem from an extrajudicial source and so long as they do not go so far as to show that the judge’s mind is closed.”).

122 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 526 FLORIDA LAW REVIEW [Vol. 65 apply prophylactic standards to guide good judges away from conduct that could impugn their impartiality, whereas judges in the procedural dimension are subject to the added constraints of having dockets to manage and a system to administer, which counsels against the application of disqualification rules that are any broader than necessary to assure parties a fair hearing in the case in question. Conversely, some conduct that is deemed problematic in the procedural dimension of impartiality is not problematic in the ethical dimension. As previously noted, across state and federal systems, disqualification is a matter of ethics and procedure.184 Even though procedural and ethical disqualification directives are essentially the same,185 the application of those directives is not. Whereas a judge is subject to disqualification in the procedural dimension when her impartiality might reasonably be questioned, irrespective of the judge’s state of mind, she is subject to discipline in the ethical dimension only when non-disqualification is willful—that is, when she knew or should have known that disqualification was necessary.186 In the procedural dimension, parties are entitled to a fair process featuring an impartial judge, which is a goal that is compromised when the disqualification standard is met. A good judge likewise disqualifies herself when the disqualification standard is met, but good judges make honest mistakes—mistakes made all the more understandable by a separate ethical directive that admonishes judges to decide the cases they are assigned unless disqualification is required—out of respect for the administrative burdens that unnecessary disqualifications pose.187 The conclusion that erroneous non-disqualification sometimes spells trouble in the procedural dimension before it does so in the ethical dimension is consonant with the more general principle that when judges make honest mistakes, the appropriate remedy is appeal, not discipline.188 To reverse judges for honest mistakes is salutary; to punish judges for honest mistakes threatens their decisional independence.189 Although state judges have an ethical duty to “uphold and apply the law,”190 errors are subject to reversal, not discipline,

184. See supra notes 133–135 and accompanying text. 185. Compare 28 U.S.C. § 455, with CODE OF CONDUCT FOR UNITED STATES JUDGES, CANON 3C (2011) (showing that rules are almost identical in many respects). 186. ALFINI ET AL., supra note 179, at 4-3 (“[A] judge will be subject to discipline (as distinct from reversal on appeal) for incorrectly failing to disqualify himself only where the failure was willful.”). 187. MODEL CODE, supra note 92, R. 2.7 & cmt. 1 (directing that judges must “decide [all] matters assigned to the judge, except when disqualification is required,” because of “the burdens that may be imposed on a judge’s colleagues” by “unwarranted disqualification”). 188. ALFINI ET AL., supra note 179, at 1-11. 189. Id. at 2-4. 190. MODEL CODE, supra note 92, R. 2.2.

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unless the errors are so egregious or chronic as to manifest bad faith or incompetence.191 Drilling the matter down to the bedrock, impartiality promotes good process in one dimension and good judges in the other. Incursions on perfect impartiality will be tolerable or not, depending on which objective is at issue and the constraints to which the applicable system of regulation is subject. In both dimensions, a judge is often exposed as partial through her speech or associations. In the procedural dimension, the speech and associations of a partial judge have consequences for the process: parties are entitled to disqualification or reversal. In the ethical dimension, such speech and associations have consequences for the judge, who is subject to discipline or (in state systems) removal. A core constraint on the regulation of judicial impartiality through codes of judicial conduct and disciplinary processes, then, is constitutional; codes of conduct seek to preserve impartiality by restricting judicial speech and expressive conduct, which judges and judicial candidates have sometimes challenged as a violation of their First Amendment rights.192 When codes of conduct restrict judicial speech on the basis of its content, the restrictions are subject to strict scrutiny.193 While promoting judicial impartiality is recognized as a compelling state interest, in the aftermath of the Supreme Court’s decision in Republican Party of Minnesota v. White, state and federal courts have looked more closely at whether code restrictions on judicial speech promote impartiality with sufficient precision. In White, the U.S. Supreme Court invalidated a rule in the Minnesota Code of Judicial Conduct, derived from the 1972 Model Code, which forbade judges and judicial candidates from announcing their views on issues that could come before them as judges, on the grounds that the rule did not further the purported goal of promoting judicial impartiality.194 In the aftermath of White, First Amendment challenges to code provisions that restrict speech for the sake of preserving judicial impartiality have continued apace. Uncertainty abounds. Some courts have invalidated rules that prohibited judges from pledging, promising, or committing to decide future cases in particular ways, while others have upheld them. Some courts have invalidated rules that prohibited judges from soliciting campaign contributions directly from donors, while others have upheld them. And

191. See ALFINI ET AL., supra note 179, at 2-4–2-15. In the federal system, the issue is resolved by the disciplinary statute itself, which directs chief judges to dismiss judicial conduct complaints that are “directly related to the merits of a decision or procedural ruling.” 28 U.S.C. § 352(b)(1)(A)(ii). 192. See, e.g., Republican Party of Minn. v. White, 536 U.S. 765, 768 (2002). 193. Id. at 774. 194. Id. at 787–88.

124 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 528 FLORIDA LAW REVIEW [Vol. 65 some courts have invalidated rules that prohibited judges from engaging in partisan political activities of various kinds, while, yet again, others have upheld them.195 In the ethical dimension, then, codes of judicial conduct sometimes regulate judicial partiality by prohibiting judicial speech, while in the procedural dimension, a judge’s speech is not prohibited, but the baleful effects of that speech on the parties’ rights to a fair hearing can be ameliorated by the judicial process. As a consequence, it may be problematic under the First Amendment to reprimand a judge for making statements to the detriment of her perceived impartiality, but not to disqualify her from a case for doing so. Litigants insensitive to this distinction between dimensions have argued that the First Amendment prohibits the disqualification of judges for announcing views they have a First Amendment right to express, and have convinced at least one court that they are right.196 More recently, however, the Supreme Court has ruled that the right of public officials to speak their minds does not subsume a right to act upon those views in their official capacity,197 which should put this small piece of the larger dispute to rest. Regulatory structures in the procedural and ethical dimensions are routinely brought to bear against many of the chronic partiality problems described in Part I, but are ill-equipped to tackle more pervasive problems the public regards as systemic. Part of the difficulty lies in the piecemeal orientation of these mechanisms. Granting this litigant’s request for disqualification or disciplining that judge for an appearance of bias does little to allay entrenched suspicions that judges categorically are under the thrall of their political ideology, socioeconomic status, gender, or race. Rules of ethics categorically prohibit judges from becoming so enthralled,198 and rules of procedure subject individual judges to disqualification when it occurs.199 But the default position in the ethical and procedural dimensions is to presume that judges are impartial until that presumption is rebutted with demonstrable proof to the contrary. Moreover, rules of ethics and procedure are enforced against judges by other judges, which skeptical observers may regard as so many foxes guarding the henhouse. To address these more diffuse and systemic concerns for the benefit of a

195. Charles Gardner Geyh, The Criticism and Speech of Judges in the United States, in JUDICIARIES IN COMPARATIVE PERSPECTIVE 257, 271 & nn.52–58 (H.P. Lee ed., 2011) (citing and discussing cases). 196. See James Bopp, Jr. & Anita Y. Woudenberg, An Announce Clause by Any Other Name: The Unconstitutionality of Disciplining Judges Who Fail to Disqualify Themselves for Exercising Their Freedom to Speak, 55 DRAKE L. REV. 723, 724 (2007); Duwe v. Alexander, 490 F. Supp. 2d 968, 976 (W.D. Wis. 2007). 197. Nev. Comm’n on Ethics v. Carrigan, 564 U.S. 1, 9 (2011). 198. See MODEL CODE, supra note 92, R. 2.2 cmt. 2. 199. FLAMM, supra note 9, at 274.

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public whose confidence in the courts may swing in the balance, regulatory mechanisms in the procedural and ethical dimensions of impartiality are supplemented by an array of devices in the political dimension. C. Regulating Judicial Impartiality in the Political Dimension The unifying feature of structures that regulate impartiality in the political dimension is that those structures are implemented by the public or the public’s elected representatives for the purpose of promoting the judiciary’s institutional legitimacy within the body politic. Such structures are logically subdivided into three categories: (1) mechanisms for judicial removal, (2) mechanisms for judicial selection, and (3) mechanisms for judicial oversight. These structures can be used to enhance the judiciary’s legitimacy in a variety of ways that include but are not limited to promoting public confidence in the judiciary’s impartiality. For example, judicial removal, selection, and oversight can also enhance the public’s faith in the courts by policing judicial honesty, integrity, competence, diligence, and temperament. The focus in this Section, however, is on the ways in which the political dimension regulates the four persistent partiality problem areas outlined in Part I. The political dimension is uniquely equipped to address partiality problems that citizens and their representatives regard as troublesome, but which judges—who oversee regulation in the procedural and ethical dimensions—do not, or which are otherwise ill-suited for remediation outside of the political dimension because of constraints under which regulation in other dimensions operate. Of particular relevance here are suspicions that broad segments of the judiciary are captured by their biases or political interests, which, despite being concerns of long standing, go largely unaddressed in litigation and disciplinary settings. With respect to the most publicized and pervasive of these public suspicions—that judges allow their ideological interests to subvert the rule of law—regulation in the political dimension manifests an inherent tension, in which one form of partiality is discouraged by encouraging another: public or political branch controls on judicial decision making seek to discourage judges from acting on their internal political interests in ways that could compromise their impartiality, and do so by encouraging judges to respond to political pressure and thereby act on their external political interests in ways that could compromise their impartiality. Insofar as regulation in this arena curtails one form of partiality by exacerbating another to the end of optimizing public confidence in the courts, delegating the task of striking the preferred balance to the public and its elected representatives (subject to the broad constitutional limits outlined below) has intuitive appeal.

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This is, in effect, another way of framing the perpetual struggle between the decisional form of judicial independence and judicial accountability, which scholars (myself included) have explored elsewhere.200 There are, however, three reasons to recast this piece of the independence–accountability debate in terms of judicial impartiality. First, the harms that independence and accountability seek to prevent can fairly be characterized as forms of judicial partiality: independence aims to insulate judges from external threats or blandishments that could impair judges’ impartial judgment, while accountability aims to ensure that judges do not allow their internal biases to compromise their impartial judgment. Second, disputants in the independence– accountability debate justify their positions in terms of the need for judicial impartiality: court defenders have objected that threats to remove judges on account of their decisions will undermine judicial impartiality;201 court critics have argued that thwarting Senate confirmation of “activist” judges is necessary to ensure that judges impartially uphold the law;202 and defenders and critics alike have rationalized their efforts to subject judges to or liberate judges from political branch controls in terms of the need to promote judicial impartiality.203 Third, situating the struggle between decisional independence and judicial accountability in a political dimension of impartiality makes it possible to analyze that struggle in a broader context that integrates procedure, ethics, and politics. 1. Mechanisms for Judicial Removal Removal mechanisms serve as a bridge between the ethical and political dimensions of impartiality. In the federal system, the sole

200. See Charles Gardner Geyh, Rescuing Judicial Accountability from the Realm of Political Rhetoric, 56 CASE W. RES. L. REV. 911, 915–17 (2006) (likening the relationship between judicial independence and accountability to that of yin and yang); Stephen B. Burbank, The Architecture of Judicial Independence, 72 S. CAL. L. REV. 315, 339–40 (1999) (describing independence and accountability as different sides of the same coin). 201. See, e.g., Joan Biskupic, In Rare Appearance, 2 Justices Concur in Threats to Neutrality, WASH. POST, Dec. 6, 1998, at A2 (“Several speakers in the weekend conference here said the overall trend [of proposing to impeach judges for their decisions] threatens the impartiality that is the hallmark of the courts and can lead judges to look over their shoulders.”). 202. Sean Lengell, Republican Filibuster Blocks Liu for Appeals Court, WASHINGTON TIMES, May 20, 2011, at A2 (explaining that Senate Republicans filibustered circuit court nominee Goodwin Liu because “Mr. Liu’s legal writings ‘reveal a left-wing ideologue who views the role of a judge not as that of an impartial arbiter, but as someone who views the bench as a position of power’”). 203. See, e.g., Editorial, Gingrich’s Threats Against Judges Go Way Beyond the Pale, U.S.A. TODAY, Dec. 20, 2011, at 10A (characterizing proposal to disestablish courts staffed by “activist” judges as antithetical to an impartial judiciary); Tom McClusky, Rein in Activist Judges, U.S.A. TODAY, Aug. 2, 2006, at 8A (advocating various political branch controls on the judiciary to preserve impartiality and independence).

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mechanism for judicial removal is the impeachment process.204 Impeachment is situated in the political dimension, as I have defined it, by virtue of being a power within the sole authority of Congress to exercise for the redress of “Treason, Bribery, or other high Crimes and Misdemeanors”205—offenses The Federalist characterized as “political” in nature and constituting an “abuse or violation of some public trust.”206 Impeachment, however, is logically connected to the ethical dimension too, insofar as conduct that the judiciary deems bad enough to warrant discipline can be bad enough to undermine public trust and warrant impeachment. Accordingly, the ultimate disciplinary sanction that federal statute authorizes the judiciary to impose in the ethical dimension is to refer a matter to the House of Representatives for a possible impeachment inquiry in the political dimension.207 Impeachable offenses do not always implicate judicial partiality— Judge Harry Claiborne, for example, was impeached and removed for tax evasion,208 which impugned his integrity, but not necessarily his commitment to deciding cases without bias or prejudice (except, perhaps, tax evasion cases). Nevertheless, of the few judicial impeachments that have been prosecuted to conclusion, several have concerned judges who, returning to the typology detailed in Part I, allegedly had their impartiality compromised by personal or relational interests in matters that they decided.209 In state systems, the primary mechanism for judicial removal is the disciplinary process.210 I have previously situated judicial discipline in the ethical dimension because it is the means by which judicial systems

204. See Peter M. Shane, Who May Discipline or Remove Federal Judges? A Constitutional Analysis, 142 U. PA. L. REV. 209, 213, 215–18, 220–22 (1993). 205. U.S. CONST. art. II, § 4. 206. THE FEDERALIST NO. 65, at 358 (Alexander Hamilton) (E.H. Scott, ed.). 207. 28 U.S.C. § 351 et seq. (2006). 208. VAN TASSEL & FINKELMAN, supra note 36, at 168–69 (1999). 209. Judges impeached for personal interests include Judges Robert Archbald, who was impeached and removed for cultivating business relationships with prospective litigants. CHARLES GARDNER GEYH, WHEN COURTS & CONGRESS COLLIDE: THE STRUGGLE FOR CONTROL OF AMERICA’S JUDICIAL SYSTEM 150 (2006) [hereinafter GEYH, WHEN COURTS & CONGRESS COLLIDE]. Alcee Hastings was impeached and removed for soliciting a bribe. EMILY FIELD VAN TASSEL, WHY JUDGES RESIGN: INFLUENCES ON FEDERAL JUDICIAL SERVICE 1789 TO 1992 81 (1993) [hereinafter VAN TASSEL, WHY JUDGES RESIGN]. G. Thomas Porteous was impeached and removed for soliciting payment from a lawyer in a pending case. CQ WEEKLY, supra note 37. Judges impeached for relational interests include Walter Nixon, who was impeached and removed for perjury after falsely denying that he intervened on a friend’s behalf to secure the dismissal of a case. VAN TASSEL, WHY JUDGES RESIGN, supra, at 101. Halsted Ritter was impeached, but removed on an omnibus count, for awarding excessive sums to a law partner. GEYH, WHEN COURTS & CONGRESS COLLIDE, supra, at 151. And George English was impeached and then resigned for, among other things, securing a position for his son with a bank holding bankruptcy funds under the judge’s control. Id. at 150–51. 210. ALFINI ET AL., supra note 179, at 15-1.

128 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 532 FLORIDA LAW REVIEW [Vol. 65 enforce codes of judicial conduct to the end of calling judges to task for bad behavior that subsumes various forms of partiality. Self-policing in this way can simultaneously promote public confidence in the courts, but other mechanisms for judicial removal are more clearly denominated political because they are controlled by non-judicial actors. In addition to impeachment processes, various states employ such removal mechanisms as: the legislative address, which authorizes the legislature to seek the removal of a judge by petitioning the governor; automatic removal of a judge upon conviction of specified crimes, which gives the executive branch a role to play in judicial removal through criminal prosecution; and judicial recall, in which the electorate is enabled to seek the removal of a judge in special elections.211 Mechanisms for judicial removal in the political dimension operate under the constraint of being cumbrous by constitutional design; these mechanisms authorize political branch encroachments on the tenure, and hence the autonomy, of the judiciary, and their unwieldiness operates as a check against overuse.212 For example, removal by impeachment in the federal system and in most states requires an impeachment upon a majority vote by one chamber of the legislature followed by a trial and conviction upon a supermajority vote in the other chamber.213 As a consequence, to the extent that impeachment has been brought to bear as a remedy for judicial partiality, it has been reserved for egregious personal or relational conflicts on the order of corruption or indictable crimes.214 In contrast, efforts to characterize highhanded decision making as an impeachable usurpation of power in which the judge’s duty to impartially uphold the law is compromised by personal or political zeal have chronically failed.215 The role that these removal mechanisms play in policing judicial conduct and promoting public confidence in the impartiality of the judiciary, however, is not necessarily limited to those few cases in which judges are removed by such mechanisms. When a judge is threatened with impeachment, recall, or removal by legislative address, it underscores the seriousness of the speaker’s concern and calls public

211. Id. at 15-1, 15-5, 15-9–15-12, 15-14–15-15. 212. Id. at 15-1–15-2. 213. Randy J. Holland & Cynthia Gray, Judicial Discipline: Independence with Accountability, 5 WIDENER L. SYMP. J. 117, 121 (2000). 214. VAN TASSEL & FINKELMAN, supra note 36, at 5–6, 13. 215. Since 1787, the House of Representatives has investigated at least thirty-two judges for high-handed decision making. GEYH, WHEN COURTS & CONGRESS COLLIDE, supra note 209, at 119. Of those, four were impeached but only one, John Pickering, was removed. Id. at 125. Pickering’s conviction is attributed largely to the judge’s insanity, not his decision making. VAN TASSEL & FINKELMAN, supra note 36, at 92 (“[H]is manifest disability undercut the precedential value his removal had for establishing the validity of the Jeffersonian theory of impeachment.”).

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attention to the underlying partiality problem.216 Moreover, the threat itself can chasten the judge in subtle and sometimes not so subtle ways. For example, in 1996, United States District Judge Harold Baer reversed his decision to suppress evidence in a drug case after being threatened with impeachment for what House and Senate leaders characterized as an “activist” ruling.217 In 2003, a Massachusetts superior court judge resigned after a bill of legislative address was filed because of a sentence she imposed in a kidnapping case.218 That same year the Nevada chief justice survived a recall election over her decision in a tax case, but resigned at the end of her term.219 Finally, recourse to these mechanisms, even if only as a rhetorical device, offers court critics an opportunity to target more categorical partiality problems. At the start of the nineteenth century, for example, newly elected Jeffersonian Republicans in Congress actively pursued impeachment as a means to purge the judiciary of what they regarded as excessively partisan judges appointed by the predecessor Federalist regime.220 Nearly two centuries later, newly elected congressional Republicans proposed a campaign to impeach “liberal judicial activist[]” judges appointed by prior administrations.221 In this way, the threat of removal has been used to address more systemic concerns that judicial impartiality has been compromised by partisan, political interests. 2. Mechanisms for Judicial Selection In state systems, judges are selected by at least five different means, involving various combinations of governors, commissions, legislatures, and voters.222 Each of these participants can have a role to play in evaluating a judicial candidate’s past or prospective impartiality as one issue among many in judicial selection. As a practical matter, however,

216. See Charles Gardner Geyh, The Choreography of Courts-Congress Conflicts, in THE POLITICS OF JUDICIAL INDEPENDENCE: COURTS, POLITICS, AND THE PUBLIC 19, 32–33 (Bruce Peobody ed., 2011). 217. Don Van Natta, Jr., A Publicized Drug Courier Pleads Guilty to 3 Felonies, N.Y. TIMES, June 22, 1996, at 23. 218. See ALFINI ET AL., supra note 179, at 15-10. 219. See id. at 15-14. 220. VAN TASSEL & FINKELMAN, supra note 36, at 91 (discussing Jeffersonian Republicans’ campaign to remove “all of [the judges] . . . indiscriminately”) (internal quotation marks omitted). 221. GEYH, WHEN COURTS & CONGRESS COLLIDE, supra note 209, at 3. 222. The five systems include: gubernatorial appointment; gubernatorial appointment from a candidate pool selected by a judicial nominating commission (“merit selection”), typically followed by periodic retention elections; partisan election; nonpartisan election; and legislative appointment. See Charles Gardner Geyh, The Endless Judicial Selection Debate and Why it Matters for Judicial Independence, 21 GEO. J. LEGAL ETHICS 1259, 1263 (2008) [hereinafter Geyh, Endless Judicial Selection Debate]. For a summary of which states use what selection methods, see http://www.judicialselection.us.

130 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 534 FLORIDA LAW REVIEW [Vol. 65 the choices that governors and commissions make to exclude particular judicial candidates are largely inscrutable, and legislatures have primary responsibility for judicial selection in only two states.223 That leaves voters, and because 80% of state judges stand for judicial elections of some sort,224 the role that elections play in policing judicial impartiality is the focus here. Elections have one foot in judicial selection and the other in judicial removal: in states with contested elections, the net effect of selecting a challenger over an incumbent is to remove the incumbent from office; in states with retention elections, the public’s role in judicial selection is limited to deciding whether an incumbent should be removed to make way for a new appointment. Either way, elections serve as a means to police judicial impartiality. For example, candidates have been called to task for their personal interest in making decisions that accommodate the preferences of their campaign contributors,225 or for their relational interest in presiding over cases in which the judge’s relatives had an interest.226 Perhaps the most common partiality problem to surface in recent judicial campaigns concerns claims that candidates have internal political interests in the issues they will decide as judges that may trump their commitment to follow the law. Examples abound in which judicial candidates have been portrayed by their opponents as activists whose commitment to impartially uphold the rule of law is compromised by their ideological biases on such matters as same-sex marriage, the death penalty, abortion, water rights, and tort reform.227 It is, of course, possible for judicial candidates to have principled disagreements over the interpretation of constitutions and statutes or the direction of the common law without implicating the impartiality of either candidate. Moreover, serious scholars of judicial behavior have refuted the premise that the rulings judges make are the product of binary choices between law and politics.228 In the political dimension of

223. Geyh, Endless Judicial Selection Debate, supra note 222, at 1263. 224. ABA, PUBLIC FINANCING OF JUDICIAL CAMPAIGNS: REPORT OF THE COMMISSION ON PUBLIC FINANCING OF JUDICIAL CAMPAIGNS 1 (2002). 225. See Toby Coleman, Massey CEO Gives $1.7 Million to Anti-Warren McGraw Group, W. VA. CITIZEN ACTION GRP. (Oct. 15, 2004), http://www.wvcag.org/news/fair_use/2004/10_15 a.htm. 226. In a 2007 Wisconsin Supreme Court race, candidate Annette Ziegler was accused (as a court of appeals judge) of presiding over cases in which her husband was affiliated with a corporate party. See Viveca Novak & Emi Kolawole, Warring Ads in Wisconsin Supreme Court Race: Ziegler and Clifford Sling Mud in the Dairy State, FACTCHECK.ORG (Mar. 30, 2007), http://www.factcheck.org/judicial-campaigns/warring_ads_in_wisconsin_supreme_court_race.h tml. 227. Charles Gardner Geyh, The Criticism and Speech of Judges in the United States, in JUDICIARIES IN COMPARATIVE PERSPECTIVE supra note 57, at 265–66. 228. Lawrence Baum, Law and Policy: More and Less than a Dichotomy, in WHAT’S LAW GOT TO DO WITH IT?: WHAT JUDGES DO, WHY THEY DO IT, AND WHAT’S AT STAKE, supra note

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impartiality, however, dichotomous debates over the “activist” motivations of judicial candidates are a prominent feature of the landscape in judicial campaigns.229 If a campaign becomes a referendum on which candidate (or whether a given candidate) is committed to impartially upholding the law in light of her views on issue X, then it follows logically that the choices voters make in that election can promote public confidence in the impartiality of the judiciary. The primary constraint on the capacity of elections to police impartiality concerns the tension alluded to earlier: to the extent that elections promote public confidence in an impartial judiciary by reassuring voters that judges selected will impartially uphold the law as voters understand it, elections do so by means that arguably undermine judicial impartiality in other respects. First, the prospect of electoral defeat is an external interest that can—and in the minds of ardent judicial election proponents, should—influence the judge’s assessment of the law and facts, to the detriment of the judge’s independence and impartiality. Second, competitive elections are fueled by campaign expenditures that create the perception that judges have a personal financial interest in aligning their decisions with contributor preferences. While worries about unaccountable judges run amok have stalled a mid-twentieth century movement among the states to end contested judicial elections,230 worries about elections run amok have thwarted any movement in the opposite direction.231 Moreover, in heated election campaigns where each side accuses the other of sponsoring an ideological zealot, the conclusion that the electoral process promotes public confidence in the impartiality of the judges selected may be optimistic.232

98, at 71 (arguing that the law–policy dichotomy “oversimplifies the reality of judging”); Frank Cross, Law is Politics, in id. at 92, 110 (arguing that the “complementary effect” of law and politics on judicial decision making is “the strength of our judicial system”). 229. Geyh, Can the Rule of Law Survive?, supra note 59, at 216–17. 230. Geyh, Endless Judicial Selection Debate, supra note 222, at 1262 (noting that “the merit selection movement has stalled”). 231. Campaigns have been launched in several states to replace merit selection systems with contested elections. See id. To date, however, those efforts have failed. See History of Reform Efforts: Unsuccessful Reform Efforts, AM. JUDICATURE SOC’Y, http://www.judicialselect ion.us/judicial_selection/reform_efforts/failed_reform_efforts.cfm?state= (last visited Dec. 18, 2012); Charles Gardner Geyh, Judicial Selection Reconsidered: A Plea for Radical Moderation, 35 HARV. J.L. & PUB. POL’Y 623, 630–31 (arguing for incremental reform of judicial selection “[w]hen, as now, the latest movement has run its course and the political will for fundamental change is absent”). 232. Survey research suggests that contested elections foster general public support for the courts. See JAMES L. GIBSON, ELECTING JUDGES: THE SURPRISING EFFECTS OF CAMPAIGNING ON JUDICIAL LEGITIMACY 146–48 (2012). That, however, is an issue distinct from whether elections engender confidence in the impartiality of the judges so selected.

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In the federal system, presidents often identify impartiality as a quality they seek when choosing judicial nominees, while senators rationalize their roles in confirmation proceedings in terms of assuring that judges confirmed will impartially uphold the law.233 The Senate has rejected nominees who exhibited financial interests in the cases they decided, the most notable example being President Richard Nixon’s failed Supreme Court nomination of Judge Clement Haynsworth, who was voted down in part for presiding over cases in which he held stock in corporate parties.234 Relational interests have been at issue with nominees portrayed as cronies of the president—President George W. Bush’s aborted Supreme Court nomination of his counsel, Harriet Miers, being a recent example.235 Bias too has arisen as an issue: President Nixon’s nomination of Judge G. Harrold Carswell to the Supreme Court was rejected, in part, for evidence of racism.236 Conversely, President Jimmy Carter launched a campaign to improve the judiciary’s institutional legitimacy by diversifying the ranks of the district courts with more women and racial minorities.237 There are two data points that suggest the possibility of a relationship between such diversification efforts and the judiciary’s impartiality in the political dimension. First, the perceived impartiality of a largely white judiciary is much lower among African-Americans than white Americans.238 Second, a judge’s race and gender inform perspectives that influence outcomes in cases of special relevance to members of the affected gender or race.239 Paradoxically, to acknowledge this relationship openly is to risk overstating it, if the ideal of an impartial judge is one impervious to extralegal influences; witness Justice Sonia Sotomayor’s confirmation struggle in the wake of statements she made that a “wise Latina judge” might decide cases differently, and better, than a white male counterpart.240 And so, as Professor Martha Minow has explained, claims that judges and the

233. See Davis, supra note 85. 234. Note, Disqualification of Judges and Justices in the Federal Courts, 86 HARV. L. REV. 736, 736 & n.2 (1973). 235. GEYH, WHEN COURTS & CONGRESS COLLIDE, supra note 209, at 206. 236. See id. at 203. 237. SHELDON GOLDMAN, PICKING FEDERAL JUDGES: LOWER COURT SELECTION FROM ROOSEVELT THROUGH REAGAN 243–44 (1997). 238. See DAVID B. ROTTMAN ET AL., NAT’L CTR. FOR STATE COURTS, PERCEPTIONS OF THE COURTS IN YOUR COMMUNITY: THE INFLUENCE OF EXPERIENCE, RACE AND ETHNICITY, FINAL REPORT 10 (2003), available at http://www.ncjrs.gov/pdffiles1/nij/grants/201302.pdf. 239. See Victor D. Quintanilla, Beyond Common Sense: A Social Psychological Study of Iqbal’s Effect On Claims of Race Discrimination, 17 MICH. J. RACE & L. 1, 60–61 (2011); Edward A. Adams, Race & Gender of Judges Make Enormous Difference in Rulings, Studies Find, A.B.A.J., Feb. 6, 2010. 240. Davis, supra note 85.

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judiciary are “enriched” by the diversity of experience that comes from racial, ethnic, and gender differences are countered by claims that a judge should be “stripped down like a runner” who sheds the biases of his race and gender like so much clothing.241 As with elections in state systems, however, the federal appointment process recently fixated on partiality manifested by the ideological orientation of judicial nominees, to the end of purging the judiciary of “activists” or “extremists,” whose internal political interests in case outcomes compromise their allegiance to the rule of law.242 And as with state judicial election campaigns, the campaign against activism waged in confirmation proceedings has transcended attacks on individual nominees and acquired a systemic focus, by seeking to ameliorate a more pervasive suspicion that judges generally capitulate to their ideological biases.243 Moreover, the countervailing concern is likewise the same: the confirmation process, like the electoral process, is ostensibly aimed at preserving public confidence in the judges so selected, but may—through highly partisan attacks impugning the impartiality of nominees from presidents of both parties—damage the judiciary’s perceived legitimacy.244 From the perspective of social science, the “judicial activist” bogeyman is a cartoonish distortion of reality. The adversarial process presupposes that there is always more than one way to look at difficult legal and factual questions. When the answers to such questions are unclear, honorable judges must, of necessity, exercise discretion— discretion that is informed by their life experience. And the data show that such discretion can be influenced by a variety of factors, including ideology, race, gender, and others.245 Campaigns to purge judicial decision making of ideological influences are thus misinformed or disingenuous. More reasonably conceived, such campaigns seek to ensure that ideological influences on the exercise of judicial discretion will fall within a politically acceptable range. To that extent, selection processes are aimed at producing judges who will be impartial enough to retain public support—and consistent with that objective, survey data in state and federal systems show that public support for the courts remains relatively strong.246

241. Martha Minow, Stripped Down Like a Runner or Enriched by Experience: Bias and Impartiality of Judges and Jurors, 33 WM. & MARY L. REV. 1201, 1201 (1992). 242. See GEYH, WHEN COURTS & CONGRESS COLLIDE, supra note 209, at 214–21. 243. See id. 244. See Geyh, Can the Rule of Law Survive?, supra note 59, at 232. 245. See supra note 239 and accompanying text. 246. See Keith J. Bybee, The Rule of Law is Dead! Long Live the Rule of Law!, in WHAT’S LAW GOT TO DO WITH IT?: WHAT JUDGES DO, WHY THEY DO IT, AND WHAT’S AT STAKE, supra note 98, at 306, 310–11.

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3. Mechanisms for Judicial Oversight In the state and federal systems, legislatures have varying degrees of regulatory authority over judicial pay raises, court structure, jurisdiction, budgets, administration, and procedure.247 These tools can afford the political branches a role to play in the procedural and ethical dimensions of impartiality. For example, in the federal system, Congress has enacted legislation governing disqualification248 and procedural rulemaking,249 which structures the manner in which courts regulate impartiality in the procedural dimension. And Congress has also enacted the Judicial Conduct and Disability Act,250 which is a means by which the federal judiciary manages impartiality in the ethical dimension.251 At their core, however, mechanisms for legislative oversight of the courts are centered in the political dimension—mechanisms that can be employed, or at least purportedly employed, for the purpose of promoting public confidence in the impartiality of the judiciary. Congress, by virtue of its power to establish inferior courts, has broad regulatory authority over the lower courts.252 To guard against perceived partiality by state judges against out-of-state litigants, Congress has, since 1789, authorized lower federal courts to exercise jurisdiction over cases arising between citizens of different states,253 and more recently has expanded diversity jurisdiction to provide defendants greater access to federal forums in class actions.254 In 1891, Congress established the circuit courts of appeals to control what congressional committee reports characterized as district court “despotism,” that is, unchecked judicial partiality toward personal or internal political interests that impeded the rule of law.255 Legislation that limits sentencing discretion—statutory minimums, maximums, and sentencing guidelines, for example—curtails the authority of judges to act on their

247. See Charles Gardner Geyh, The Elastic Nature of Judicial Independence and Judicial Accountability, in THE IMPROVEMENT OF THE ADMINISTRATION OF JUSTICE 167, 168–71 (Gordon M. Griller & E. Keith Stott, Jr. eds., ABA Press 7th ed. 2002) [hereinafter Geyh, The Elastic Nature of Judicial Independence]. 248. 28 U.S.C. § 455 (2006). 249. Id. §§ 2071–77. 250. Id. §§ 351–64. 251. See id. 252. Geyh, The Elastic Nature of Judicial Independence, supra note 247, at 168–69. 253. 28 U.S.C. § 1332(a) (2006). 254. Id. § 1332(d). 255. JURISDICTION OF THE COURTS OF THE UNITED STATES, H.R. REP. NO. 50-942, at 3–4 (1888), reprinted in 3 CONGRESS AND THE COURTS: A LEGISLATIVE HISTORY 1787–1977, 4543, 4545–46 (Bernard D. Reams, Jr. & Charles R. Haworth eds., 1978); Act of March 3, 1891, ch. 517, 26 Stat. 826.

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ideological prejudices.256 And the campaign against judicial activism, which Republican presidential candidates sought to revitalize in the 2012 presidential campaign, has included proposals to discourage partiality toward judges’ internal political interests by disestablishing or cutting the budgets of uncooperative courts, freezing judicial salaries, and depriving judges of jurisdiction to hear controversial cases.257 Many state legislatures have undertaken to regulate their respective judiciaries in similar ways toward similar ends by manipulating judicial salaries and budgets and proposing to curtail subject matter jurisdiction and judicial review.258 The authority of legislatures to regulate judicial impartiality through oversight is subject to constitutional and normative constraints. As to constitutional constraints, Article III limits legislative control over judicial tenure and salaries, and the judiciary’s exclusive constitutional authority to exercise judicial power bars Congress from overturning judgments by legislation.259 Congress’s authority to establish (and by negative implication disestablish) the lower courts does not extend to the U.S. Supreme Court, where congressional authority is limited to making regulations and exceptions incident to the Court’s appellate jurisdiction260 and exercising whatever additional powers are implied by the Necessary and Proper Clause.261 Many state constitutions grant their judicial systems greater institutional separation and independence than their federal counterpart, which can further limit legislatures’ regulatory authority over state court operations.262 As to normative constraints, I have argued elsewhere that over the course of the nineteenth century, Congress gradually internalized judicial independence norms that constrained its political will to control judges and their decision making to the full extent authorized by the U.S. Constitution.263 The net effect was to render less viable tools seemingly at Congress’s disposal to chasten judges whose internal political interests in the outcomes of cases they decided compromised their impartiality.264

256. See GEYH, WHEN COURTS & CONGRESS COLLIDE, supra note 209, at 268–69. 257. Id. at 3–4. 258. Emily Field Van Tassel, Challenges to Constitutional Decisions of State Courts and Institutional Pressures on State Judiciaries, in ALFRED P. CARLTON, JR., JUSTICE IN JEOPARDY: REPORT OF THE AMERICAN BAR ASSOCIATION COMMISSION ON THE 21ST CENTURY JUDICIARY app. E, at 6–10 (2003). 259. See U.S. CONST. art. III, § 1. 260. See Kline v. Burke Constr. Co., 260 U.S. 226 (1922). 261. See id. at 233–34; U.S. CONST. art. III, § 2; id. art. I, § 8, cl. 18 (defining the Necessary and Proper Clause). 262. Charles Gardner Geyh, The Elastic Nature of Judicial Independence, supra note 247, at 170. 263. See GEYH, WHEN COURTS & CONGRESS COLLIDE, supra note 209, at 10–14. 264. Id. at 254–55.

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IV. PONDERING IMPONDERABLES AND TRACKING TRENDS Professors Stephen Burbank and Barry Friedman reconceptualized judicial independence with the insight that the judiciary’s independence is not monolithic; it has different forms, different meanings, and different applications in different contexts.265 The same may be said of judicial impartiality. Describing judicial impartiality in terms of its procedural, ethical, and political dimensions—each with distinct schemas for regulation that vary across and within jurisdictions— illuminates the relationship between judicial process, ethics, and politics and reveals an architecture for conceptualizing impartiality that solves some of the puzzles introduced in this Article. A. The Imponderables Revisited This Article began with Lillian Hellman’s observation that “[n]obody outside of a baby carriage or a Judge’s chamber can believe in an unprejudiced point of view.”266 Putting the infants to one side (or at least down for a nap), judges may well “believe” themselves unprejudiced. After all, judges “persistently and adamantly deny that their fact-finding or legal interpretations are motivated by their personal . . . preferences.”267 Moreover, even if judges are influenced by their prejudices, cognitive psychology offers an explanation, traveling under the name “motivated reasoning,” for why judges may be sincere in their belief that they are not so influenced.268 After two millennia of evidence to the contrary, however, it is too late in the day to make categorical claims that judges are literally impartial in the sense of being devoid of prejudice or bias. Hellman made her observation in a book review: unlike fiction writers, she explained, “the historian or biographer . . . must make sure . . . that the people he is writing about

265. See Stephen B. Burbank & Barry Friedman, Reconsidering Judicial Independence, in JUDICIAL INDEPENDENCE AT THE CROOSROADS: AN INTERDISCIPLINARY APPROACH 9, 16–22 (Stephen B. Burbank & Barry Friedman eds., 2002). 266. Hellman, supra note 4. 267. C.K. ROWLAND & ROBERT A. CARP, POLITICS AND JUDGMENT IN FEDERAL DISTRICT COURTS 147 (1996). 268. Motivated reasoning posits that a decision maker’s ideological and other motivations affect her reasoning process in ways that persuade her to favor legal arguments for preferred outcomes. See EILEEN BRAMAN, LAW, POLITICS, & PERCEPTION: HOW POLICY PREFERENCES INFLUENCE LEGAL REASONING 13–40 (2009) (outlining the theory of motivated reasoning and exploring potential weaknesses); Lawrence Baum, Motivation and Judicial Behavior: Expanding the Scope of Inquiry, in THE PSYCHOLOGY OF JUDICIAL DECISION MAKING 3, 5 (David Klein & Gregory Mitchell eds., 2010) (summarizing the development of the attitudinal model of judicial behavior); Dan Simon, A Third View of the Black Box: Cognitive Coherence in Legal Decision Making, 71 U. CHI. L. REV. 511, 541–42 (2004) (exploring motivated reasoning in several contexts where facts were distorted to ensure a desired outcome).

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are not the victims of his loving or unloving heart.”269 Thus, even if it is impossible to have an unprejudiced point of view, she concluded, “simply in self-interest, the biographer must try for one.”270 Perhaps the same may be said of judges: even if a completely impartial perspective is unattainable, we must still insist that judges—aided by those who oversee judicial systems—“try for one.” In short, perfect impartiality remains the ideal, while “impartial enough” is the pragmatic objective. That objective is dimension-dependent, in that the impartiality needed to give parties an acceptably fair hearing can differ from that needed to ensure an acceptably ethical judge, which, in turn, can differ from the impartiality necessary to preserve an acceptable degree of public confidence in the judiciary. Once the inevitability of imperfect impartiality is acknowledged, it becomes possible to unpack the quandary presented by Judge Walker deciding the same-sex marriage case. Insofar as Judge Walker’s perspective is informed by his experience as a homosexual, the same can be said of the heterosexual judge. To the extent that these differences in perspective are characterized as forms of bias that can influence a judge’s interpretation of the Equal Protection Clause in the context of a gay marriage case, they are ubiquitous. And in the procedural dimension of impartiality, which is constrained by the need for an ample supply of judges to decide cases, universal disqualification would be impracticable. Whether a judge is gay or straight, Christian or Jewish, male or female, black or white, may well exert a more significant extralegal influence on judicial decision making in certain kinds of cases than, say, whether the judge owns a few shares of stock in a corporate party. But from a practical perspective, disqualification procedure depends on more or less bright lines and limited applications. Hence, disqualification for stock ownership presents a manageable disqualification rule, while disqualification for affiliation with a given race, gender, ethnicity, or sexual orientation—absent specific statements or conduct indicative of bias in a particular case—does not. Moreover, absent such particularized evidence of bias, the right of parties to an impartial hearing in the procedural dimension is not compromised but arguably furthered by the diversity of perspective that comes from judges with varying backgrounds. If one accepts the premise that there is often no one “correct” answer to many of the difficult questions judges decide, and that the exercise of discretion is therefore inevitable, then as long as a judge’s race, gender, ethnicity, or sexual orientation informs her discretion without overriding her commitment to follow the law, diversity of perspective can level the ideological playing field for

269. Hellman, supra note 4. 270. Id.

138 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 542 FLORIDA LAW REVIEW [Vol. 65 litigants. Judge Pickering’s scenario addresses the flip side of the same coin. A judge’s political ideology may influence her decision making to an even greater extent than her race or gender, but like the influence of gender or race, ideology furnishes neither a necessary nor manageable basis for disqualification in the procedural dimension.271 The political dimension, in contrast, is unencumbered by the same constraints and is less concerned with ensuring litigants a fair hearing than it is with preserving the public’s confidence in the impartiality of its judiciary. Hence, the Senate may challenge the impartiality of nominees in light of racial, gender, or ideological biases that would not call the judge’s impartiality into question in disqualification proceedings.272 For example, it is difficult to imagine that Justice Sotomayor could be disqualified from race and gender discrimination cases on the grounds that her impartiality might reasonably be questioned because she once said that her status as a Latina woman influences her decision making.273 And yet, in confirmation proceedings, the Senate devoted considerable attention to whether that very statement would undermine public confidence in her impartiality to an unacceptable degree.274 The same point can be made of Judge Pickering: ideological predilections that would have little bearing on Judge Pickering’s impartiality in a disqualification setting nonetheless called his impartiality into question during his Senate confirmation proceedings.275 The Senate’s rejection of Judge Pickering’s nomination to the Fifth Circuit underscores how much ideological orientation has to do with a judge’s impartiality in the political dimension, where a nominee’s commitment to impartially uphold the law is measured with reference to whether the judge’s views on legal issues are politically acceptable. In that setting, the judge who shares her views risks undermining her perceived impartiality with the public and being rejected by the Senate for that reason. It is thus understandable that as a nominee Judge Scalia declined to take public positions on issues he was likely to decide as a Justice, on the grounds that doing so could compromise his impartiality.276 Conversely, in Republican Party of Minnesota v. White,277 when Justice Scalia opined on behalf of the Court that a judge’s predilections on questions of law had nothing to do with his impartiality, he did so in a case that fell squarely within the ethical

271. FLAMM, supra note 9, at § 10.7. 272. See, e.g., Davis, supra note 85. 273. Id.; FLAMM, supra note 9, at § 10.3. 274. Davis, supra note 85. 275. See supra note 8 and accompanying text. 276. Nomination of Judge Antonin Scalia, supra note 12, at 58. 277. 536 U.S. 765 (2002).

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dimension of impartiality.278 At issue was whether the Minnesota Supreme Court’s interest in preserving impartiality by disciplining judicial candidates who announced their preexisting legal views trumped the candidates’ First Amendment freedom of speech.279 In that setting, Justice Scalia approved one definition of impartiality (lack of bias for or against a party) and possibly a second (open-mindedness), but explicitly rejected a third: “lack of preconception in favor of or against a particular legal view.”280 With respect to the latter, the Court explained that preexisting views on legal questions were indicative of a good and learned judge, not a partial one.281 The Minnesota Supreme Court’s ultimate argument was, in effect, that a good judge is an impartial judge is an open-minded judge, and that candidates who announce their views compromise their open-mindedness—an argument the Court rejected on the grounds that the announce clause did not further the state’s purported interest in an impartial, open-minded judiciary.282 Put another way, in the ethical dimension, declining to share one’s thoughts on legal questions during judicial campaigns is not a defining feature of an impartial qua ethical judge. It may, however, remain an issue for an impartial qua fair judge in the procedural dimension, insofar as judges who share their views in ways that appear to pre-commit them to decide future issues in specified ways may be subject to disqualification.283 And in the political dimension, declining to share one’s views can be a near-prerequisite for an impartial qua politically acceptable judge. The problem in the political dimension is not that judges who announce their views appear closed-minded to Senators in confirmation proceedings or to voters in judicial elections—although judges who decline to express their views often worry aloud that they do not want to compromise their impartiality in the procedural dimension by appearing to pre-commit themselves before parties have an opportunity to be heard.284 The core problem in the political dimension is that the substance of a judicial candidate’s views is fodder for campaigns that attack the candidates as activist or excessive in ways that belie the candidate’s commitment to impartially upholding the law. And so, Judge Scalia kept his counsel during confirmation proceedings, and incumbent state judges likewise decline overtures to announce their views in judicial campaigns, notwithstanding their First Amendment

278. Id. at 776–77. 279. Id. at 768. 280. Id. at 775–78. 281. Id. at 777–78. 282. Id. at 778–81. 283. MODEL CODE, supra note 92, R. 2.11(A)(5). 284. See Nomination of Judge Antonin Scalia, supra note 12, at 58.

140 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 544 FLORIDA LAW REVIEW [Vol. 65 right to do otherwise.285 Which brings us to the problem presented by Twombly286 and Iqbal,287 in which the Supreme Court has reinvigorated the pleading process by subjecting complaints to dismissal if they do not allege a plausible claim—an assessment that the Court has instructed judges to make with reference to their “common sense” and “experience.”288 By encouraging judges to make plausibility assessments prior to discovery, the Court has weakened a procedural impediment to premature judgment. Insofar as plausibility “may lie in the eye of the beholder,”289 the new standard invites judges to act on their predispositions to the detriment of their impartiality. For example, one recent study confirmed that there has been a statistically significant change in dismissal rates in black plaintiffs’ claims of race discrimination post-Iqbal.290 The debate over pleading standards turns on the question of whether the costs and delays of discovery—constraints under which impartiality is regulated in the procedural dimension—trump the benefits of protracting the litigation process to better guard against prejudgment and the perils of judges bringing their prejudices into play at the outset of the litigation. In Twombly and Iqbal, the Court answered that question in the affirmative. The implication underlying these decisions is not that impartiality is expendable, but that it is expensive, and that a pleading standard that tolerates a bit more prejudgment in exchange for a bit less cost and delay yields a process that is “impartial enough” for the procedural dimension. B. Trends in the Regulation of Impartiality The relevance of Twombly and Iqbal is not limited to their use as a foil for understanding how impartiality is regulated in the procedural dimension. Anger over those decisions piqued congressional interest, a development that is representative of a larger trend. When recent events in the regulation of impartiality are compartmentalized into their applicable dimensions, a pattern emerges that reveals a gradual movement away from regulation in the procedural and ethical dimensions toward regulation in the political dimension.

285. See CHRIS W. BONNEAU & MELINDA GANN HALL, IN DEFENSE OF JUDICIAL ELECTIONS 41 (2009) (finding no statistically significant post-White impact on contestation rates in judicial elections). 286. Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). 287. Ashcroft v. Iqbal, 556 U.S. 662 (2009). 288. Twombly, 550 U.S. at 555–56; Iqbal, 556 U.S. at 678–79. 289. Arthur Miller, From Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil Procedure, 60 DUKE L.J. 1, 36 (2010). 290. Quintanilla, supra note 239, at 30–42.

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Returning briefly to Twombly and Iqbal, two consequences followed naturally from the Supreme Court’s decisions. First, by changing the pleading standards on its own, the Court effectively foreclosed resolution of the question in the procedural dimension by means of the largely intra-judicial Rules Enabling Act.291 That is so because, as a practical matter, it is unlikely that the Judicial Conference would challenge the conclusion of its presiding officer, the Chief Justice (who voted with the majority in both cases),292 and nullify Twombly and Iqbal by promulgating a new rule that could only become effective with the approval of the Supreme Court—the Supreme Court that authored the cases the new rule would overturn.293 As a consequence, the question of pleading standards reform in the aftermath of Twombly and Iqbal has moved to Congress in the political dimension, where it has become a hotly contested issue.294 Second, by giving district judges greater latitude to dismiss complaints they deem “implausible” on the basis of their “common sense,” the Court has increased the discretion of judges to act upon their predilections in ways that invite more sustained inquiry into such questions during confirmation proceedings. To date, district judges have largely avoided the highly politicized confirmation showdowns that have plagued Supreme Court and circuit court nominees.295 To the extent that “plausibility” is in the eye of the beholder, however, it may only be a matter of time before the “common sense” of district court nominees is tested in the appointments crucible. A comparable movement from the procedural to the political dimensions has occurred in the disqualification arena. An ironic impediment to regulating impartiality through rigorous enforcement of disqualification rules in the procedural dimension is that the procedures courts typically follow to implement those rules can compromise the perceived impartiality that disqualification rules seek to promote. In the federal system, and in many states, judges whose disqualification is sought decide the matter for themselves.296 Appellate review is available, but, with rare exception, appellate courts employ a highly deferential standard of review,297 which proceeds from the dubious premise that when deciding whether a judge is or appears to be too biased to hear a matter, we should defer to the assessment of the judge

291. 28 U.S.C. §§ 2071–77 (2006). 292. Id. § 331. 293. Id. § 2074(a). 294. Videofile: Has the Supreme Court Limited Americans’ Access to Courts?, U.S. SENATE COMM. ON THE JUDICIARY (Dec. 2, 2009), http://www.judiciary.senate.gov/hearings/hea ring.cfm?id=e655f9e2809e5476862f735da1540e6d. 295. GEYH, WHEN COURTS & CONGRESS COLLIDE, supra note 209, at 214. 296. See ABA Judicial Disqualification Project, supra note 133, at 16. 297. Id.

142 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 546 FLORIDA LAW REVIEW [Vol. 65 who allegedly is or appears to be too biased to hear the matter.298 Moreover, on courts of last resort, judges typically have the first and final word on their own qualifications to sit, and may err on the side of non-disqualification if there is no means to replace them when they withdraw.299 Insofar as being impartial is a defining feature of the “good” judge in the ethical dimension, judges who implement disqualification rules in the procedural dimension would seem to have a personal interest in the outcomes of challenges to their own impartiality. As a consequence, many lawyers have long been reluctant to seek disqualification of judges, who are unlikely to second-guess their own impartiality and who may take umbrage at the suggestion that their impartiality is in doubt.300 For their part, judges have pushed back against efforts to reform disqualification procedure, arguing that such reforms are unnecessary and burdensome—core efficiency concerns that constrain the regulation of impartiality in the procedural dimension.301 In 2007, the American Bar Association (ABA) launched the Judicial Disqualification Project, which was aimed at “taking [judicial] disqualification seriously.”302 The Project’s 2008 preliminary report proposed six specific reforms to “diminish or eliminate the need for targeted judges to rule on motions for their own disqualification.”303 Two draft resolutions followed that sought to implement the recommendations of the draft report,304 but were withdrawn following objections from the ABA’s Judicial Division, among other ABA entities.305 A third resolution proposed simply that “each state should have in place clearly articulated procedures . . . for the handling of disqualification determinations” that “should be designed to produce resolution of disqualification issues that are both prompt and meaningful.”306 Even that, however, drew Judicial Division fire,307 and the call for prompt and meaningful determinations was

298. Id. at 16–17. 299. See, e.g., Cheney v. U.S. Dist. Court for Dist. of Columbia, 541 U.S. 913, 915–16 (2004) (Justice Scalia explained his disinclination to err on the side of disqualification, given the risk of a 4–4 tie on the Court.). 300. Geyh, Why Judicial Disqualification Matters, supra note 117, at 700–01. 301. ABA Judicial Disqualification Project, supra note 133, at 17. 302. Id. at 12. I served as Director of and consultant to the ABA Judicial Disqualification Project from 2007 to 2009. The views I express in this Article are mine alone, and not necessarily those of the ABA Judicial Disqualification Project, the ABA Standing Committee on Judicial Independence to which I reported, or the ABA itself. 303. Charles Gardner Geyh, Judicial Disqualification Project, Report of the Judicial Disqualification Project 59 (2008) (on file with the author), available at http://www.american bar.org/content/dam/aba/administrative/judicial_independence/jdp_geyh_report.authcheckdam.pdf. 304. ABA, DISCUSSION DRAFTS (RES.?) (on file with the author). 305. Geyh, Why Judicial Disqualification Matters, supra note 117, at 727–28. 306. ABA, DISCUSSION DRAFT (July 16, 2010) (on file with the author). 307. Geyh, Why Judicial Disqualification Matters, supra note 117, at 727–28.

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replaced by a fourth resolution, which the ABA ultimately adopted, for “prompt review by another judge or tribunal, or as otherwise provided by law or rule of court, of denials of requests to disqualify a judge”308— which, given the universal availability of appellate review could fairly be characterized as endorsing the status quo. With efforts to reinvigorate the administration of disqualification rules in the procedural dimension languishing, activity in the political dimension has filled the void. The House Judiciary Committee held hearings on judicial disqualification in 2009 that focused on disqualification procedure.309 A 2009 survey found that over 80% of the public thought that disqualification requests should be decided by a different judge than the one whose disqualification is sought.310 Interest groups and the media have tapped into the public’s skepticism of judicial self-disqualification with several highly publicized campaigns to pressure Supreme Court Justices into recusing themselves in high- profile cases. Calls for Justice Scalia’s disqualification in the duck hunting imbroglio of 2004 were followed by campaigns to disqualify Justices Thomas and Elena Kagan from participating in a case challenging the constitutionality of health care legislation, because of alleged conflicts attributable to the activities of Justice Thomas’s spouse on behalf of organizations opposed to the legislation, and Justice Kagan’s role in the development of the legislation while Solicitor General for the Obama Administration. Meanwhile, Justice Stephen Breyer announced his view that disqualification concerns were overblown and that the disqualification of Justice Thomas presented a “false issue.”311 As previously noted, there are longstanding ethical directives against judges making public statements on pending or impending cases.312 That Justice Breyer saw fit to make such statements here simultaneously underscores the diminished status of disqualification relative to other issues in the legal process, and the

308. ABA, JUDICIAL DISQUALIFICATION AND DISCLOSURE RESOLUTION 107 (2011), available at http://www.americanbar.org/content/dam/aba/administrative/judicial_ independenc e/report107_judicial_disqualification.authcheckdam.pdf. 309. Examining the State of Judicial Recusals after Caperton v. A.T. Massey: Hearing Before the Subcomm. on Courts & Competition Pol’y of the H. Comm. on the Judiciary, 111th Cong., 1st Sess. (2009), available at http://judiciary.house.gov/hearings/hear_091210_2.html. 310. Lissette Villarruel, Poll: Public Wants Firewall Between Judges, Election Backers, GRAVEL GARB (Feb. 23, 2009), http://www.gavelgrab.org/?p=877 (finding that 81% of U.S. adults thought that a different judge should decide disqualification motions). 311. Robert Barnes, A Health Law Warm-up Fight for High Court, WASH. POST, Nov. 28, 2011, at A1 (internal quotation marks omitted). 312. U.S. COURTS, CODE OF CONDUCT FOR UNITED STATES JUDGES Canon 3(A)(6) (2011) (“A judge should not make public comment on the merits of a matter pending or impending in any court.”), available at http://www.uscourts.gov/RulesAndPolicies/CodesOfConduct/CodeCo nductUnitedStatesJudges.aspx.

144 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 548 FLORIDA LAW REVIEW [Vol. 65 elevated status of disqualification in the political process. Arguably, the Supreme Court’s decision in Caperton v. A.T. Massey Coal Co.313 revitalized impartiality in the procedural dimension by characterizing non-disqualification in the teeth of probable bias as a Due Process Clause violation.314 The impact of Caperton, however, is sharply limited by the constraints under which the Due Process Clause regulates judicial impartiality.315 As previously explained, such constraints relegate due process challenges to the status of a last resort reserved for nippy days in hell.316 The Caperton majority emphasized that non-disqualification will violate due process only in outlier cases, when judges exhibit a flagrant probability of bias that inexplicably manages to evade capture by standard disqualification rules—rules that require recusal whenever a judge’s impartiality might reasonably be questioned.317 In short, the impact of Caperton is likely to be largely symbolic. There is likewise evidence of a gradual movement away from regulation of impartiality in the ethical dimension and toward heightened interest in the political dimension. A primary constraint on the robust operation of disciplinary mechanisms in the ethical dimension is that those mechanisms are implemented by and for judges who are predisposed to presume themselves impartial.318 In the federal system, that constraint has rendered the lower federal courts susceptible to criticism that the disciplinary process is underenforced and that the Code is underutilized.319 Such criticism has piqued congressional interest, thereby shifting the locus of attention to the political dimension. Thus, in response to the latest wave of concern, the House held oversight hearings on the disciplinary process;320 members of Congress investigated the conduct of judges whose disciplinary proceedings have stalled,321 with an eye toward possible impeachment; the Chair of the House Judiciary Committee introduced legislation to

313. 556 U.S. 868 (2009). 314. Id. at 883–90. 315. Id. at 889–90. 316. See supra notes 126–130 and accompanying text. 317. Caperton, 556 U.S. at 886–90. 318. See supra notes 198–199 and accompanying text. 319. See, e.g., Lise Olson, Judging the Judges: Veil of Secrecy Stirring Calls for Change, HOUS. CHRON., Dec. 31, 2009, at A1. 320. The Operations and Federal Judicial Misconduct and Recusal Statutes: Hearing Before the Subcomm. on Courts, the Internet and Intellectual Property of the H. Comm. on the Judiciary, 107th Cong. (2001) (culminating in the proposal of The Judicial Improvements Act of 2002, H.R. 3892, 107th Cong. (2002)). 321. Impeaching Manuel L. Real, Judge of the U.S. Dist. Court for the Cent. Dist. of Cal., for High Crimes and Misdemeanors: Hearing Before the Subcomm. on Courts, the Internet and Intellectual Property of the H. Comm. on the Judiciary, 109th Cong. 90 (2006).

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establish an inspector general to investigate disciplinary complaints against judges;322 and Senators, frustrated by the Judicial Conference’s failure to regulate the ethics of judges attending educational seminars at vacation resorts, underwritten by corporations interested in the outcomes of cases those judges decided, introduced bills to ban “junkets for judges.”323 The Supreme Court, in contrast to the “inferior courts,” is not subject to any disciplinary process, other than impeachment, and has no code of conduct to which it has bound itself.324 Chief Justice Roberts has explained that Justices on the Court do in fact consult the Code just as district and circuit court judges do,325 which is not the same as saying that they have bound themselves to follow the Code as lower courts have. Thus, for example, Justices Scalia and Thomas were featured speakers at the 2012 annual meeting of the Federalist Society, which would seem to have violated the Code of Conduct as construed by the Judicial Conference.326 The vacuum created by the absence of a Code to regulate the Court in the ethical dimension has been filled in the political dimension with a campaign launched by the media and interest groups, questioning the ethics and perceived impartiality of individual Justices, decrying the absence of a Code that applies to the Supreme Court, and calling for reform. At the same time, a group of preeminent scholars have called attention to the under-regulation of the Supreme

322. H.R. 5219, 109th Cong. (2006); Bruce Moyer, Proposals Resurface to Create a Judicial Branch Watchdog, FED. BAR ASS’N (Mar./Apr. 2011), http://fedbar.org/Advocacy/Was hington-Watch/WW-Archives/2011/MarchApril-2011.aspx. 323. Fair and Independent Federal Judiciary Act of 2003, S. 787, 108th Cong., 1st Sess. (2003). 324. See Caprice L. Roberts, The Fox Guarding the Henhouse?: Recusal and the Procedural Void in the Court of Last Resort, 57 RUTGERS L. REV. 107, 111 (2004). 325. Chief Justice John G. Roberts, Jr., 2011 Year-End Report on the Federal Judiciary 2– 4 (2011), available at http://www.supremecourt.gov/publicinfo/year-end/2011year-endreport.pdf. 326. U.S. COURTS, COMMITTEE ON CODES OF CONDUCT, ADVISORY OPINION NO. 46 (2012) (“The Commentary to Canon 4C states that ‘[a] judge may attend fund-raising activities of law- related and other organizations although the judge may not be a speaker, a guest of honor, or featured on the program of such an event.’ When a judge is chosen to receive an award, it would appear likely that the judge would be either a ‘guest of honor’ or a ‘speaker’ at such an event. Additionally, the judge should consider whether the judge’s presence is being employed as a device to promote publicity and the sale of tickets.”), available at http://www.uscourts.gov/ Viewer.aspx?doc=/uscourts/RulesAndPolicies/conduct/Vol02B-Ch02.pdf. The annual dinner would seem to be a “fundraising activity” in the obvious sense that the Federalist Society wants revenues from ticket sales to exceed costs, and so will sell as many tickets as possible by promoting the Justices as featured speakers. There are good reasons to relax this restriction (the Model Code has, in Rule 3.7(A)(4)), particularly for Justices on the U.S. Supreme Court whose appearance as featured speakers at such events can enrich public understanding of the Court and its Justices. The point, for purposes here, however, is that Justices Thomas and Scalia felt unencumbered by the Code of Conduct for U.S. Judges, which retains the restriction.

146 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 550 FLORIDA LAW REVIEW [Vol. 65

Court in the procedural and ethical dimensions and called for reform.327 Among the states, Republican Party of Minnesota v. White diminished the constitutional authority of state supreme courts and judicial conduct organizations to regulate the political speech of judges in the name of preserving judicial impartiality. Insofar as the ethical propriety of judges appearing to prejudge cases from the campaign stump remains an issue, it is an issue relegated by default to the political dimension.328 And so, in the post-White era, judicial campaigns have featured an awkward ballet, in which interest groups have asked judges to state their views on issues they may decide; and when judges demur, citing impartiality concerns, the groups have sought to make a campaign issue of the judges’ intransigence.329 This trend in the regulation of impartiality that I have sought to isolate—away from its procedural and ethical dimensions and toward the political—yields a new perspective on longstanding, if diffuse, complaints within the legal establishment that the judiciary is being overly “politicized.” It is too late in the day to take calls to “depoliticize” the judiciary seriously, when social science learning and public opinion have converged on the conclusion that judges exercise discretion that is subject to ideological and other political influences.330 In short, we must recognize that regulation of judges and their impartiality in the political dimension is an inevitability. One may nonetheless worry about excessive politicization, when pieces of impartiality that are arguably better reserved for regulation in the procedural and ethical dimensions are commandeered by the political dimension. For those who share such concerns, the three-dimensional schema proposed here offers a possible path to reform: regulatory recapture by the ethical or procedural dimensions from the political. One example should suffice. In the past decade, when Congress intruded upon the ethical dimension with threats to legislate against “junkets for judges,” insinuate an inspector general into the judiciary’s disciplinary process, and launch retaliatory impeachment inquiries, the

327. Hon. Joseph R. Biden, Jr. et al., Four Proposals for a Judiciary Act, PAULCARRINGTON.COM (Feb. 9, 2009), http://paulcarrington.com/Four%20Proposals%20for% 20a%20Judiciary%20Act.htm. 328. About half the states have adopted a rule in the ABA Model Code that calls for the disqualification of a judge whose public statements “appear to commit” the judge to reaching a particular result in a future case, but that rule does not address the ethical propriety of making such statements in the first place. 329. Terry Carter, The Big Bopper: This Terre Haute Lawyer is Exploding the Canons of Judicial Campaign Ethics, 92 A.B.A. J. 31, 32–34 (2006) (characterizing the message sent by questionnaires as: judge, you can no longer hide behind the code of judicial conduct, in light of the U.S. Supreme Court’s decision in White, and if you decline to answer what my client constituency wants to know, it will most likely cost you their votes). 330. Geyh, Can the Rule of Law Survive?, supra note 59, at 244–45.

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Judicial Conference responded by retaking the regulatory initiative. Chief Justice William Rehnquist established a Commission to evaluate the disciplinary process, which published a candid and sometimes critical self-assessment that culminated in proposed reforms that the Judicial Conference promptly adopted.331 At the same time, the Judicial Conference Committee on Codes of Conduct revised its advisory opinion on participation in and reimbursement for judicial participation in educational activities to address some of the core concerns underlying legislation aimed at so-called “junkets.”332 The gambit quieted congressional critics: no legislation was enacted, no formal impeachment investigations progressed, and the regulatory center of gravity remained within the ethical dimension and the Judicial Branch. It is beyond the scope of this Article to develop a normative theory to evaluate which dimension is best suited to take the lead in regulating what impartiality problems. For purposes here, it is enough to note that the interdimensional balance is fluid and subject to negotiation and compromise.

CONCLUSION Over the course of the past fifteen years, judicial independence has been richly theorized in symposia, books, and articles. This Article represents an initial effort to do the same for judicial impartiality. By reconceptualizing judicial impartiality in three dimensions, and applying this three-dimensional schema across a range of applications, I have sought to situate impartiality at a critical crossroads, where judicial procedure, ethics, and politics meet.

331. THE JUDICIAL CONDUCT AND DISABILITY ACT STUDY COMM., IMPLEMENTATION OF THE JUDICIAL CONDUCT AND DISABILITY ACT OF 1980: A REPORT TO THE CHIEF JUSTICE, 239 F.R.D. 116, 126 (2006), available at http://www.supremecourt.gov/publicinfo/breyercommitteereport. pdf. 332. U.S. COURTS, COMMITTEE ON CODES OF CONDUCT, ADVISORY OPINION NO. 67 (2012), available at http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/RulesAndPolicies/conduct/ Vol02B-Ch02.pdf.

148 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 How Judges Decide Cases

Dr. Carol Tavris

Los Angeles, CA Carol Tavris has a Ph.D. in social psychology. She has spoken frequently on the difference between testimony based on good psychological science and that based on pseudoscience and subjective clinical opinion. Her audiences have included the Council of Chief Appellate Judges; judicial education programs; forensic investiga- tors; and conferences of criminal defense attorneys. She is the author, with Elliot Aronson, of Mistakes Were Made (But Not by ME), about the psychology of self-justification, among other books and psychology textbooks. She is a fellow of both the American Psychological Association and the Association for Psychological Science, and she serves on the board of the Council for Scientific Clinical Psychology and Psychiatry and the editorial board of Psychological Science in the Public Interest. How Judges Decide Cases

Table of Contents Presentation...... 153

How Judges Decide Cases ■ Tavris ■ 151

Presentation

Mistakes Were Made (but not by me)

Why we justify foolish beliefs, bad decisions, and hurtful acts

By Carol Tavris and Elliot Aronson

Harcourt, Inc.

Orlando Austin New York San Diego Toronto London

How Judges Decide Cases ■ Tavris ■ 153

We are all capable of believing things which we know to be untrue, and then,

when we are finally proved wrong, impudently twisting the facts so as to show

that we were right. Intellectually, it is possible to carry on this process for an

indefinite time: the only check on it is that sooner or later a false belief bumps up

against solid reality, usually on a battlefield.

—George Orwell (1946)

A great nation is like a great man:

When he makes a mistake, he realizes it.

Having realized it, he admits it.

Having admitted it, he corrects it.

He considers those who point out his faults as his most benevolent teachers.

—Lao Tzu (poetic translation by Stephen Mitchell)

ii 154 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014

CONTENTS

Introduction Knaves, Fools, Villains, and Hypocrites: How do they live with themselves?

Chapter 1 Cognitive Dissonance: The Engine of Self-justification

Chapter 2 Pride and Prejudice . . . And Other Blind Spots

Chapter 3 Memory, the Self-justifying Historian

Chapter 4 Good Intentions, Bad Science: The Closed Loop of Clinical Judgment

Chapter 5 Law and Disorder

Chapter 6 Love’s Assassin: Self-justification in Marriage

Chapter 7 Wounds, Rifts, and Wars

Chapter 8 Letting Go and Owning Up

Afterword

Endnotes

iii How Judges Decide Cases ■ Tavris ■ 155

INTRODUCTION

KNAVES, FOOLS, VILLAINS, AND HYPOCRITES: How Do They Live with Themselves?

Mistakes were quite possibly made by the administrations in which I served.

—Henry Kissinger, responding to charges that he committed war crimes in his role in the United States’ actions in Vietnam, Cambodia, and South America in the 1970s

If, in hindsight, we also discover that mistakes may have been made . . . I am deeply sorry.

—Cardinal Edward Egan of New York, referring to the bishops who failed to deal with child molesters among the Catholic clergy

Mistakes were made in communicating to the public and customers about the ingredients in our French fries and hash browns.

—McDonald’s, apologizing to Hindus and other vegetarians for failing to inform them that the “natural flavoring” in their potatoes contained beef byproducts

This week’s question: How can you tell when a presidential scandal is serious?

A. The president’s poll numbers drop. B. The press goes after him. C. The opposition calls for his impeachment. D. His own party members turn on him. E. Or the White House says, “mistakes were made.”

—Bill Schneider on CNN’s Inside Politics

As fallible human beings, all of us share the impulse to justify ourselves and avoid taking

responsibility for any actions that turn out to be harmful, immoral, or stupid. Most of us will

never be in a position to make decisions affecting the lives and deaths of millions of people, but

whether the consequences of our mistakes are trivial or tragic, on a small scale or a national

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canvas, most of us find it difficult, if not impossible, to say, “I was wrong; I made a terrible mistake.” The higher the stakes—emotional, financial, moral—the greater the difficulty.

It goes further than that: Most people, when directly confronted by irrefutable evidence that they are wrong, do not change their point of view or course of action but justify it even more tenaciously. Politicians, of course, offer the most visible, and often tragic, examples of this practice. Throughout his presidency, George W. Bush was the epitome of a man for whom even irrefutable evidence could not pierce his mental armor of self-justification. Bush was wrong in his claim that Saddam Hussein had weapons of mass destruction, he was wrong in claiming that

Saddam was linked with Al Qaeda, he was wrong in predicting that Iraqis would be dancing joyfully in the streets to receive American soldiers, he was wrong in his gross underestimate of the human and financial costs of the war, and he was most famously wrong in his speech six weeks after the invasion began, when he announced (under a banner reading MISSION

ACCOMPLISHED) that “major combat operations in Iraq have ended.”

Even as commentators from the right and left called on Bush to admit he had been mistaken, Bush merely found new justifications for the war: getting rid of a “very bad guy,” fighting terrorists, promoting peace in the Middle East, bringing democracy to Iraq, increasing

American security, and finishing “the task [our troops] gave their lives for.” In the midterm election of 2006, which most political observers regarded as a referendum on the war, the

Republican party lost both houses of Congress; a report issued shortly thereafter by sixteen

American intelligence agencies announced that the occupation of Iraq had actually increased

Islamic radicalism and the risk of terrorism. Yet Bush said to a delegation of conservative columnists, “I’ve never been more convinced that the decisions I made are the right decisions.”i

Of course, George Bush was not the first nor will he be the last politician to justify

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decisions that turned out to have been based on incorrect premises or have disastrous

consequences. Lyndon Johnson would not heed the advisers who repeatedly told him the war in

Vietnam was unwinnable, and he sacrificed his presidency because of his self-justifying certainty

that all of Asia would “go Communist” if America withdrew. When politicians’ backs are nailed

to the wall, they may reluctantly acknowledge error, but not responsibility. They have refined

the art of speaking in the passive voice: Oh, all right, mistakes were made, but not by me; by

someone else, who shall remain nameless.ii When Henry Kissinger said that the “administration”

may have made mistakes, he was sidestepping the fact that as national security adviser and

secretary of state (simultaneously) he, in effect, was the administration. This self-justification

allowed him to accept the Nobel Peace Prize with a straight face and a clear conscience.

We look at the behavior of politicians with amusement or alarm or horror, but,

psychologically, what they do is no different in kind, though certainly in consequence, from what

most of us have done at one time or another in our private lives. We stay in an unhappy

relationship or merely one that is going nowhere because, after all, we invested so much time in

making it work. We stay in a deadening job way too long because we look for all the reasons to

justify staying and are unable to clearly assess the benefits of leaving. We buy a lemon of a car

because it looks gorgeous, spend thousands of dollars to keep the damn thing running, and then

we spend even more to justify that investment. We self-righteously create a rift with a friend or

relative over some real or imagined slight, yet see ourselves as the pursuers of peace—if only the

other side would apologize and make amends.

Self-justification is not the same thing as lying or making excuses. Obviously, people

will lie or invent fanciful stories to duck the fury of a lover, parent, or employer; to keep from

being sued or sent to prison; to avoid losing face; to avoid losing a job; to stay in power. But

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there is a big difference between what a guilty man says to the public to convince them of something he knows is untrue (“I did not have sex with that woman”; “I am not a crook”), and the process of persuading himself that he did a good thing. In the former situation, he is lying and knows he is lying to save his own skin. In the latter, he is lying to himself. That is why self- justification is more powerful and more dangerous than the explicit lie. It allows people to convince themselves that what they did was the best thing they could have done. In fact, come to think of it, it was the right thing. “There was nothing else I could have done.” “Actually, it was a brilliant solution to the problem.” “I was doing the best for the nation.” “Those bastards deserved what they got.” “I’m entitled.”

Self-justification not only minimizes our mistakes and bad decisions; it is also the reason that everyone can see a hypocrite in action except the hypocrite. It allows us to create a distinction between our moral lapses and someone else’s, and to blur the discrepancy between our actions and our moral convictions. Aldous Huxley was right when he said, “There is probably no such thing as a conscious hypocrite.” It seems unlikely that Newt Gingrich said to himself, “My, what a hypocrite I am. There I was, all riled up about Bill Clinton’s sexual affair, while I was having an extramarital affair of my own right here in town.”

In the same way, we each draw our own moral lines and justify them. For example, have you ever done a little finessing of expenses on income taxes? That probably compensates for the legitimate expenses you forgot about, and besides, you’d be a fool not to, considering that everybody else does. Did you fail to report some extra cash income? You’re entitled, given all the money that the government wastes on pork-barrel projects and programs you detest. Have you been writing personal e-mails and surfing the Net at your office when you should have been tending to business? Those are perks of the job, and besides, it’s your own protest against those

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stupid company rules, and besides, your boss doesn’t appreciate all the extra work you do.

Gordon Marino, a professor of philosophy and ethics, was staying in a hotel when his pen

slipped out of his jacket and left an ink spot on the silk bedspread. He decided he would tell the

manager, but he was tired and did not want to pay for the damage. That evening he went out

with some friends and asked their advice. “One of them told me to stop with the moral

fanaticism,” Marino said. “He argued, ‘The management expects such accidents and builds their

cost into the price of the rooms.’ It did not take long to persuade me that there was no need to

trouble the manager. I reasoned that if I had spilled this ink in a family-owned bed-and-

breakfast, then I would have immediately reported the accident, but that this was a chain hotel,

and yadda yadda yadda went the hoodwinking process. I did leave a note at the front desk about

the spot when I checked out.”iii

But, you say, all those justifications are true! Hotel room charges do include the costs of

repairs caused by clumsy guests. The government does waste money. My company probably

wouldn’t mind if I spend a little time on e-mail and I do get my work done (eventually).

Whether those claims are true or false is irrelevant. When we cross these lines, we are justifying

behavior that we know is wrong precisely so that we can continue to see ourselves as honest

people and not criminals or thieves. Whether the behavior in question is a small thing like

spilling ink on a hotel bedspread, or a big thing like embezzlement, the mechanism of self-

justification is the same.

Now, between the conscious lie to fool others and unconscious self-justification to fool

ourselves lies a fascinating gray area, patrolled by that unreliable, self-serving historian—

memory. Memories are often pruned and shaped by an ego-enhancing bias that blurs the edges

of past events, softens culpability, and distorts what really happened. When researchers ask

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husbands and wives what percentage of the housework they do, the wives say, “Are you kidding? I do almost everything, at least 90 percent.” And the husbands say, “I do a lot, actually, about 40 percent.” Although the specific numbers differ from couple to couple, the total always exceeds 100 percent by a large margin.iv It’s tempting to conclude that one spouse is lying, but it is more likely that each is remembering in a way that enhances his or her contribution.

Over time, as the self-serving distortions of memory kick in and we forget or distort past events, we may come to believe our own lies, little by little. We know we did something wrong, but gradually we begin to think it wasn’t all our fault, and after all the situation was complex.

We start underestimating our own responsibility, whittling away at it until it is a mere shadow of its former hulking self. Before long, we have persuaded ourselves, believing privately what we originally said publicly. John Dean, Richard Nixon’s White House counsel, the man who blew the whistle on the conspiracy to cover up the illegal activities of the Watergate scandal, explained how this process works:

Interviewer: You mean those who made up the stories were believing their own

lies?

Dean: That’s right. If you said it often enough, it would become true. When the

press learned of the wire taps on newsmen and White House staffers, for example,

and flat denials failed, it was claimed that this was a national-security matter. I’m

sure many people believed that the taps were for national security; they weren’t.

That was concocted as a justification after the fact. But when they said it, you

understand, they really believed it.v

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Like Nixon, Lyndon Johnson was a master of self-justification. According to his

biographer Robert Caro, when Johnson came to believe in something, he would believe

in it “totally, with absolute conviction, regardless of previous beliefs, or of the facts in the

matter.” George Reedy, one of Johnson’s aides, said that he “had a remarkable capacity

to convince himself that he held the principles he should hold at any given time, and there

was something charming about the air of injured innocence with which he would treat

anyone who brought forth evidence that he had held other views in the past. It was not an

act. . . . He had a fantastic capacity to persuade himself that the ‘truth’ which was

convenient for the present was the truth and anything that conflicted with it was the

prevarication of enemies. He literally willed what was in his mind to become reality.”vi

Although Johnson’s supporters found this to be a rather charming aspect of the man’s

character, it might well have been one of the major reasons that Johnson could not

extricate the country from the quagmire of Vietnam. A president who justifies his actions

only to the public might be induced to change them. A president who has justified his

actions to himself, believing that he has the truth, becomes impervious to self-correction.

The Dinka and Nuer tribes of the Sudan have a curious tradition. They extract the

permanent front teeth of their children—as many as six bottom teeth and two top teeth—which

produces a sunken chin, a collapsed lower lip, and speech impediments. This practice apparently

began during a period when tetanus (lockjaw, which causes the jaws to clench together) was

widespread. Villagers began pulling out their front teeth and those of their children to make it

possible to drink liquids through the gap. The lockjaw epidemic is long past, yet the Dinka and

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Nuer are still pulling out their children’s front teeth.vii How come?

In 1847, Ignac Semmelweis famously exhorted his fellow physicians to wash their hands before delivering babies. He realized that they must have acquired some kind of “morbid poison” on their hands from doing autopsies on women who had died of childbed fever, then transferred the poison to women in labor. (He didn’t know the exact mechanism, but he had the right idea.) Semmelweis ordered his own medical students to wash their hands in a chlorine antiseptic solution, and death rates from childbed fever dropped rapidly thereafter. Yet his colleagues refused to accept Semmelweis’s concrete evidence, the lower death rate among his own patients.viii Why didn’t they embrace Semmelweis’s discovery immediately, thanking him effusively for finding the reason for so many unnecessary deaths?

After World War II, Ferdinand Lundberg and Marynia Farnham published the bestseller

Modern Woman: The Lost Sex, in which they claimed that a woman who achieves in “male spheres of action” may seem to be successful in the “big league,” but she pays a big price:

“sacrifice of her most fundamental instinctual strivings. She is not, in sober reality, temperamentally suited to this sort of rough and tumble competition, and it damages her, particularly in her own feelings.” And it makes her frigid, besides: “Challenging men on every hand, refusing any longer to play even a relatively submissive role, multitudes of women found their capacity for sexual gratification dwindling.”ix In the ensuing decade, Dr. Farnham, who earned her MD from the University of Minnesota and did postgraduate work at Harvard Medical

School, made a career out of telling women not to have careers. Wasn’t she worried about becoming frigid and damaging her fundamental instinctual strivings?

The sheriff’s department in Kern County, California, arrested a retired high-school principal, Patrick Dunn, on suspicion of the murder of his wife. They interviewed two people

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who told conflicting stories. One was a woman who had no criminal record and no personal

incentive to lie about the suspect, and who had calendars and her boss to back up her account of

events. The other was a career criminal facing six years in prison, who had offered to

incriminate Dunn as part of a deal with prosecutors, and who offered nothing to support his story

except his word for it. The detectives had to choose between believing the woman (and in

Dunn’s innocence) or the criminal (and in Dunn’s guilt). They chose to believe the criminal.x

Why?

By understanding the inner workings of self-justification, we can answer these questions

and make sense of dozens of other things that people do that would otherwise seem

unfathomable or crazy. We can answer the question so many people ask when they look at

ruthless dictators, greedy corporate CEOs, religious zealots who murder in the name of God,

priests who molest children, or people who cheat their siblings out of a family inheritance: How

in the world can they live with themselves? The answer is: exactly the way the rest of us do.

Self-justification has costs and benefits. By itself, it’s not necessarily a bad thing. It lets

us sleep at night. Without it, we would prolong the awful pangs of embarrassment. We would

torture ourselves with regret over the road not taken or over how badly we navigated the road we

did take. We would agonize in the aftermath of almost every decision: Did we do the right

thing, marry the right person, buy the right house, choose the best car, enter the right career? Yet

mindless self-justification, like quicksand, can draw us deeper into disaster. It blocks our ability

to even see our errors, let alone correct them. It distorts reality, keeping us from getting all the

information we need and assessing issues clearly. It prolongs and widens rifts between lovers,

friends, and nations. It keeps us from letting go of unhealthy habits. It permits the guilty to

avoid taking responsibility for their deeds. And it keeps many professionals from changing

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outdated attitudes and procedures that can be harmful to the public.

None of us can live without making blunders. But we do have the ability to say: This is not working out here. This is not making sense. To err is human, but humans then have a choice between covering up or fessing up. The choice we make is crucial to what we do next. We are forever being told that we should learn from our mistakes, but how can we learn unless we first admit that we made any? To do that, we have to recognize the siren song of self-justification. In the next chapter, we will discuss cognitive dissonance, the hardwired psychological mechanism that creates self-justification and protects our certainties, self-esteem, and tribal affiliations. In the chapters that follow, we will elaborate on the most harmful consequences of self- justification: how it exacerbates prejudice and corruption, distorts memory, turns professional confidence into arrogance, creates and perpetuates injustice, warps love, and generates feuds and rifts.

The good news is that by understanding how this mechanism works, we can defeat the wiring. Accordingly, in the final chapter, we will step back and see what solutions emerge for ourselves as individuals, for our relationships, for society. Understanding is the first step toward finding solutions that will lead to change and redemption. That is why we wrote this book.

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CHAPTER 1

COGNITIVE DISSONANCE: THE ENGINE OF SELF-JUSTIFICATION

Press Release date: November 1, 1993

WE DIDN’T MAKE A MISTAKE when we wrote in our previous releases that New York would be destroyed on September 4 and October 14, 1993. We didn’t make a mistake, not even a teeny eeny one!

Press Release date: April 4, 1994

All the dates we have given in our past releases are correct dates given by God as contained in Holy Scriptures. Not one of these dates was wrong . . . Ezekiel gives a total of 430 days for the siege of the city . . . [which] brings us exactly to May 2, 1994. By now, all the people have been forewarned. We have done our job. . . .

We are the only ones in the entire world guiding the people to their safety, security, and salvation!

We have a 100 percent track record!xi

It’s fascinating, and sometimes funny, to read doomsday predictions, but it’s even more

fascinating to watch what happens to the reasoning of true believers when the prediction flops

and the world keeps muddling along. Notice that hardly anyone ever says, “I blew it! I can’t

believe how stupid I was to believe that nonsense”? On the contrary, most of the time they

become even more deeply convinced of their powers of prediction. The people who believe that

the Bible’s book of Revelation or the writings of the sixteenth-century self-proclaimed prophet

Nostradamus have predicted every disaster from the bubonic plague to 9/11 cling to their

convictions, unfazed by the small problem that their vague and murky predictions were

intelligible only after the event occurred.

...

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Introduction Knaves, Fools, Villains, and Hypocrites: How do they live with themselves? i “Spy Agencies Say Iraq War Worsens Terrorism Threat,” The New York Times, September 24, 2006; the comment to conservative columnists was reported by one of them, Max Boot, in “No Room for Doubt in the Oval Office,” Los Angeles Times, September 20, 2006. For a detailed accounting of George Bush’s claims to the public regarding the war in Iraq, see Frank Rich (2006), The Greatest Story Ever Sold: The Decline and Fall of Truth from 9/11 to Katrina. New York: The Penguin Press. In his State of the Union address in January 2007, Bush acknowledged that “where mistakes were made” in a few tactics used in conducting the war, he was responsible for them. But he held firm that there would be no major changes in strategy: On the contrary, he would increase the number of troops and invest even more money in the war. As high-ranking members of Bush’s administration left to write their memoirs, they have painted a portrait of Bush and his inner circle as people driven by certainty and “groupthink”; anyone who offered unwelcome facts was ignored, demoted, or fired. See, for example, Robert Draper (2007), Dead Certain: The Presidency of George W. Bush. New York: Free Press. See also Jack Goldsmith (2007), The Terror Presidency: Law and Judgment Inside the Bush Administration. New York: W. W. Norton.

ii The American Presidency Project (online), www.presidency.ucsb.edu/ws/index.php, provides documented examples of every instance of “mistakes were made” said by American presidents. It’s a long list. Bill Clinton said that “mistakes were made” in the pursuit of campaign contributions, and later joked about the popularity of this phrase and its passive voice at a White House Press Correspondents dinner, but apparently no mistakes were made about Monica Lewinsky. Of all the presidents, Richard Nixon and Ronald Reagan used the phrase most, the former to minimize the illegal actions of the Watergate scandal, the latter to minimize the illegal actions of the Iran-Contra scandal. See also Charles Baxter’s eloquent essay, “Dysfunctional narratives: or: ‘Mistakes were made,’” in Baxter (1997), Burning Down the House: Essays on Fiction. Saint Paul, MN: Graywolf Press. iii Gordon Marino, “Before teaching ethics, stop kidding yourself,” in The Chronicle of Higher Education, February 20, 2004. iv On the self-serving bias in memory (and the housework study in particular), see Michael Ross and Fiore Sicoly (1979), “Egocentric biases in availability and attribution,” Journal of Personality and Social Psychology, 37, 322-336. See also Suzanne C. Thompson and Harold H. Kelley (1981), “Judgments of responsibility for activities in close relationships,” Journal of Personality and Social Psychology, 41, 469- 477. v John Dean, interviewed for Playboy by Barbara Cady, January 1975, pp. 65-80; quote on p. 78. vi Robert A. Caro (2002), Master of the Senate: The Years of Lyndon Johnson. New York: Knopf, p. 886. vii Katherine S. Mangan (2005, April 1), “A brush with a new life,” The Chronicle of Higher Education,

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pp. A28-A30.

viii See, for example, Sherwin Nuland (2003), The Doctors’ Plague: Germs, childbed fever and the strange story of Ignac Semmelweiss. New York: Norton/Atlas.

ix Ferdinand Lundberg and Marynia F. Farnham (1947), Modern Woman: The lost sex. New York: Harper and Brothers, p. 11 (first quote), p. 120 (second quote).

x Edward Humes (1999), Mean Justice. New York: Pocket Books.

Chapter 1 Cognitive Dissonance: The Engine of Self-justification

xi Press releases from Neal Chase, representing the religious group Baha’is Under the Provisions of the Covenant, in “The End is Nearish,” Harper’s, February 1995, pp. 22, 24.

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Corey Rayburn Yung

University of Kansas School of Law

403 Green Hall 1535 W. 15th Street Lawrence, KS 66045 (785) 864-4152 [email protected] Prof. Corey Rayburn Yung joined the University of Kansas School of Law faculty as a visiting professor in the fall 2011 semester and accepted a full-time position in June 2012. Before he arrived at KU, Prof. Yung was an associate professor for the John Marshall Law School in Chicago, with research focused on criminal law, sex crimes, and judicial decision-making. Before he began his professorial career, he served as an associate for Shearman & Sterling in New York and spent two years clerking for the Hon. Michael J. Melloy of the U.S. Court of Appeals for the Eighth Circuit. He earned a J.D. from the University of Virginia School of Law and a B.A. from the University of Iowa. How Judges Decide Cases

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A TYPOLOGY OF JUDGING STYLES

Corey Rayburn Yung

ABSTRACT—This Article calls into question the fundamental premises of models of judicial decisionmaking utilized by legal and political science scholars. In the place of the predominant theories, I offer a new approach to understanding judicial behavior which recognizes judicial heterogeneity, multidimensional behavior, and interconnectedness among judges at different levels within the judiciary. The study utilizes a unique dataset of over 30,000 judicial votes from eleven courts of appeals in 2008, yielding statistically independent measures for judicial activism, ideology, independence, and partisanship. Based upon those four metrics, statistical cluster analysis is used to identify nine statistically distinct judging styles: Trailblazing, Consensus Building, Stalwart, Regulating, Steadfast, Collegial, Incrementalist, Minimalist, and Error Correcting. These judicial style types offer a fuller account of judicial behavior than any of the prior models utilized by scholars.

AUTHOR—Corey Rayburn Yung is an Associate Professor of Law at the University of Kansas School of Law. For their helpful comments and suggestions, I would like to thank Ryan C. Black, Christina L. Boyd, Edward K. Cheng, Judge Frank H. Easterbrook, Theodore Eisenberg, Lee Epstein, Joshua B. Fischman, Tracey E. George, Raizel Liebler, James T. Lindgren, Lumen N. Mulligan, Judge Richard A. Posner, David L. Schwartz, and the participants at the Northwestern University School of Law & University of Chicago Law School Workshop on Judicial Behavior, Junior Faculty Works-in-Progress Workshop at Washington University School of Law, Conference on Empirical Legal Studies, Federal Courts Junior Faculty Workshop, University of Iowa College of Law Faculty Workshop, New Voices in Civil Justice Workshop at Vanderbilt Law School, and Michigan State University College of Law Junior Faculty Workshop.

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INTRODUCTION ...... 1758 I. UNDERSTANDING JUDICIAL DECISIONMAKING ...... 1764 A. Law, Strategy, and Politics ...... 1765 B. Studies of Judicial Methods, Similarity, and Interrelations ...... 1768 II. BEHAVIORAL MEASURES ...... 1769 A. Data Gathering and Database Construction ...... 1770 B. Decisionmaking Metrics ...... 1771 III. JUDICIAL STYLE TYPOLOGY ...... 1778 A. Multidimensional Clusters of Judges ...... 1779 B. Judicial Styles ...... 1781 C. Limitations ...... 1790 D. Comparison to Public Accounts of Judges ...... 1791 IV. PREDICTING JUDICIAL STYLES ...... 1796 A. Data for Background Factor Testing ...... 1796 B. Law School Attended ...... 1797 C. Appointing President’s Political Party ...... 1799 D. Senior Status ...... 1800 E. Circuit…...... 1801 CONCLUSION ...... 1803 APPENDIX A ...... 1804 APPENDIX B ...... 1808 APPENDIX C ...... 1814

INTRODUCTION On June 29, 2011, a Sixth Circuit Court of Appeals panel issued an eagerly awaited decision in a case concerning the constitutionality of the Patient Protection and Affordable Care Act (ACA).1 In a split vote among the three jurists, Judges Boyce Martin and Jeffrey Sutton held that the ACA was constitutional under existing precedent related to the Commerce and Necessary and Proper Clauses.2 Scholars, pundits, and other court watchers were shocked at Judge Sutton’s vote to uphold the “liberal” law because he was known as a prominent conservative judge appointed by a Republican President.3 As Professor Arthur Hellman stated after the panel’s decision:

1 Thomas More Law Ctr. v. Obama, 651 F.3d 529 (6th Cir. 2011). 2 Id. at 534, 541; id. at 554–55, 558 (Sutton, J., concurring in part). 3 See, e.g., Joan Biskupic, Appeals Court Upholds Insurance Mandate, USA TODAY, June 30, 2011, at 7A (“Sutton’s stance was also important because he is one of the most high-profile conservative judges nationwide.”); Robyn Blumner, A Vote for Upholding Health Reform, ST. PETERSBURG TIMES, July 17, 2011, at 5P (“You may not have heard of Sutton, but he’s a fixture in conservative legal circles. Sutton clerked for U.S. Supreme Court Justice Antonin Scalia. As a lawyer,

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“Of all the federal appeals judges, Sutton is one of the last I would have expected to uphold this.”4 Just as the qualitative impressions of Judge Sutton led commentators astray, the three dominant quantitative models of judicial decisionmaking failed to predict his vote.5 The attitudinal model, which contends that political ideology guides judicial votes, could not rationalize the “liberal” vote from a “conservative” judge, regardless of how ideology is measured.6 The strategic model, which holds that judges issue opinions based upon institutional and personal considerations, was similarly stifled, as Judge Sutton had seemingly sacrificed his chance of being nominated to the Supreme Court by a Republican President.7 And the formal model, which argues that neutral judges render decisions by determinate rules, could not easily explain why the three judges had not reached the same conclusion he was an active member of the Federalist Society and a persistent advocate for states’ rights before the U.S. Supreme Court. After Sutton was nominated to the federal appellate bench by President George W. Bush, he won only two Democratic votes in his Senate confirmation. Yet Sutton, in a stroke of uncompromising objectivity, became the first judge appointed by a Republican President to rule in favor of the constitutionality of the Affordable Care Act.”); Linda Greenhouse, A Supreme Court Scorecard, N.Y. TIMES OPINIONATOR (July 13, 2011, 9:30 PM), http://opinionator.blogs.nytimes.com/ 2011/07/13/a-supreme-court-scorecard/ (“It would be inaccurate to say that Judge Sutton is a rising star in the conservative legal firmament; the 50-year-old former law clerk to Justice Scalia and the late Justice Lewis F. Powell Jr. is fully risen, on anyone’s short list for the next time a Republican president gets the chance to make a Supreme Court nomination.”); Dan Horn, Cincinnati Appeals Court Upholds Obama’s Health-Reform Plan, CINCINNATI ENQUIRER (June 29, 2011), http://news.cincinnati.com/ article/20110629/NEWS0108/306290041/Cincinnati-appeals-court-upholds-Obama-s-health-reform- plan (“Sutton’s decision to join Martin in the majority was to some observers the most surprising aspect of the ruling. Appointed by President George W. Bush, Sutton is among the most reliably conservative of the 6th Circuit’s 15 judges.”); Ilya Somin, Regulating Inactivity: A Radical Constitutional Departure, JURIST (July 1, 2011), http://jurist.org/forum/2011/07/ilya-somin-sixth-circuit-ruling.php (“Before this decision, judges in these cases had split along ideological and partisan lines. . . . Judge Jeffrey Sutton, however, a well-known conservative jurist, has now become the first exception to the trend.”). 4 Horn, supra note 3. 5 See Frank B. Cross, Decisionmaking in the U.S. Circuit Courts of Appeals, 91 CALIF. L. REV. 1457, 1461–90 (2003) [hereinafter Cross, Decisionmaking]. Cross also discussed a fourth model for judicial decisionmaking: the litigant-driven theory. Id. at 1490–97. However, the litigant-driven theory has not been widely studied, and as Cross noted, evidence that litigants drive decisionmaking in the courts of appeals has been very limited. Id. at 1514. 6 Using as a simple proxy measure the party of the appointing President, Cross, Decisionmaking, supra note 5, at 1479, Judge Sutton scored as a 1, the same as every other judge appointed by a Republican President. Using the more refined Common Space Scores, see Lee Epstein et al., The Judicial Common Space, 23 J.L. ECON. & ORG. 303 (2007), which incorporate Senatorial politics at the time of confirmation, Judge Sutton scored a 0.2260, which placed him as a moderate conservative. In neither instance did the traditional attitudinal model predict a liberal vote in a seemingly ideologically- charged case from Judge Sutton. 7 Greenhouse, supra note 3; Mark Walsh, Youth Will Out: No Matter Who Wins, Nominees Will Get Younger, 98 A.B.A. J. 19 (2012) (“The former Scalia clerk has been a darling of conservatives, but his concurring opinion last year upholding the Affordable Care Act has led some to cross Sutton off their [Supreme Court nominee] lists.”).

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about the relevant precedent.8 Although ideology alone was successful in predicting the votes of all of the Supreme Court Justices except Chief Justice John Roberts in their review of the ACA,9 such a simple predictor has repeatedly failed to explain the overwhelming majority of votes by judges on lower federal courts.10 So, why were all of the empirical models “wrong” in predicting the Sixth Circuit’s decision?11 The fault lies in the fact that the dominant models of judicial12 decisionmaking rely on three basic dubious assumptions that have been neither empirically tested nor validated for lower court judges: 1. Homogeneity—judges should be understood as a monolithic group that utilizes similar, if not identical, approaches to judging.13 2. Unidimensionality—judges decide cases based upon [ideology, strategy, law] and [ideology, strategy, law] should be measured along a single continuum.14

8 Christopher H. Schroeder, Deliberative Democracy’s Attempt to Turn Politics into Law, 65 LAW & CONTEMP. PROBS. 95, 108 (2002) (“[T]he demands of public reasoning diverge from the legal model. In law, judges who have deliberated and yet continue to disagree form themselves into majorities, pluralities, concurrences, and dissents. In separate opinions, judges develop the divergent reasoning of their separate positions.”). This is not to say that the formal model predicts no dissents by judges. Rather, for judges below the Supreme Court, the formal model must necessarily integrate explanations from alternative theories to explain why judges disagree about the application of specific precedent. 9 Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012). 10 See, e.g., Cross, Decisionmaking, supra note 5, at 1479–82. 11 “[W]rong” is used in the sense that Judge Sutton’s vote is not consistent with the expected results of the three dominant theories. Of course, no theory of judicial decisionmaking approaches 100% accuracy. The story of Judge Sutton’s vote is, thus, intended to illustrate the shortcomings of the dominant models, but not to provide a statistical proof of the failure of those theories. 12 Although the introduction includes as examples the Justices of the Supreme Court, the words “judges” and “judicial” in this Article refer to judges other than the Justices. Although some of the criticisms of the dominant approaches in this Article apply to Supreme Court studies, far more research of the Court has been done that meets the challenges outlined in this Article. See Cross, Decisionmaking, supra note 5, at 1479–82. Indeed, in some cases, the excellent empirical research on the Justices has inspired some of the measures described and utilized in this Article. See, e.g., Andrew D. Martin & Kevin M. Quinn, Dynamic Ideal Point Estimation via Markov Chain Monte Carlo for the U.S. Supreme Court, 1953–1999, 10 POL. ANALYSIS 134, 139–40 (2002). 13 See, e.g., Daniel Klerman, Jurisdictional Competition and the Evolution of the Common Law, 74 U. CHI. L. REV. 1179, 1203 (2007) (“The jurisdictional competition model assumes that judges are homogeneous. Of course, they were not. Introducing heterogeneity would complicate the model without substantially altering the conclusions.”). 14 This assumption has been most often made in studies of judicial ideology. See Carolyn Shapiro, Coding Complexity: Bringing Law to the Empirical Analysis of the Supreme Court, 60 HASTINGS L.J. 477, 501 (2009) (“These scholars assume that in deciding a case, the Justices need only consider their preferences about a single question and that the Justices’ preferences can be arrayed along a single ideological dimension.” (internal quotation marks omitted)). Although some scholarship has tested and validated the unidimensionality assumption at the Supreme Court level, see Tonja Jacobi & Matthew Sag, Taking the Measure of Ideology: Empirically Measuring Supreme Court Cases, 98 GEO. L.J. 1, 19–20 (2009) (“[T]here is considerable evidence that a single dimension captures the vast majority of judicial behavior. The fact that one dimension captures most judicial behavior does not imply that legal

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3. Isolation—each judge or level of judges should be gauged independently of other actors in the judicial system.15 Based upon those assumptions, existing research presumes that Judge Sutton would behave like every other judge based upon the single dimension of ideology, strategy, or law without any regard to the particulars of the district court judgment under review. These tenuous premises have been at the center of empirical research in large part because of the available data. There simply has not been a publicly accessible dataset that could be effectively used to study relationships between diverse judges while concurrently utilizing multiple behavioral metrics of individual judges.16 This study, based upon a unique dataset of over 30,000 judicial votes, seeks to rectify the shortcomings of the previous attempts to empirically explain and predict judicial behavior with a new dataset that integrates both federal trial and appellate decisionmaking. In order to do so, I apply statistical cluster analysis to construct a typology of judicial styles based upon my prior work that created behavioral metrics of judicial activism, independence, partisanship, and ideology.17 This method yields nine distinctive judicial decisionmaking styles exhibited in the data by judges on the United States Courts of Appeals: analysis is simplistic, only that most judicial considerations are generally quite highly correlated.”), no similar studies have been done for the courts of appeals. See Joshua B. Fischman & David S. Law, What Is Judicial Ideology, and How Should We Measure It?, 29 WASH. U. J.L. & POL’Y 133, 152, 168– 70 (2009) (“At the same time, the assumption of unidimensional ideology may not hold as well for other courts as it does for the United States Supreme Court. Very little is known about the dimensionality of ideology on other courts, and further investigation is surely warranted.”). 15 A notable exception to this general rule has been the work regarding panel effects. See, e.g., Frank B. Cross & Emerson H. Tiller, Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals, 107 YALE L.J. 2155, 2168–75 (1998); Pauline T. Kim, Deliberation and Strategy on the United States Courts of Appeals: An Empirical Exploration of Panel Effects, 157 U. PA. L. REV. 1319 (2009); Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 VA. L. REV. 1717, 1751–56 (1997). However, even within the very valuable scholarship regarding panel effects, research has been limited to judges operating on the same panels. Scholars have not explored the interrelations between judges working at different levels in the judicial system. This omission is particularly notable given the rigid hierarchal structure of the judicial systems in the United States wherein review of lower courts is the primary function of higher courts. 16 Previous empirical research concerning federal appellate judges has relied primarily upon the United States Courts of Appeals Database (Songer Database), which includes more than 18,000 opinions from 1925 to 1996. See ASHLYN K. KUERSTEN & DONALD R. SONGER, DECISIONS ON THE U.S. COURTS OF APPEALS 14, 241 (2001). For reasons discussed later in this Article, the Songer Database cannot be used to test the three basic assumptions targeted herein. See infra Part I.A. 17 Corey Rayburn Yung, Flexing Judicial Muscle: An Empirical Study of Judicial Activism in the Federal Courts, 105 NW. U. L. REV. 1 (2011) [hereinafter Yung, Activism]; Corey Rayburn Yung, Judged by the Company You Keep: An Empirical Study of the Ideologies of Judges on the United States Courts of Appeals, 51 B.C. L. REV. 1133 (2010) [hereinafter Yung, Ideology]; Corey Rayburn Yung, Beyond Ideology: An Empirical Study of Partisanship and Independence in the Federal Courts, 80 GEO. WASH. L. REV. 505 (2012) [hereinafter Yung, Partisanship].

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x Trailblazing: shaping circuit law along ideological lines while being relatively unconcerned with the particulars of district court review; x Consensus Building: maintaining strong ideological commitments while effectively encouraging panel unanimity; x Stalwart: exhibiting the strongest partisan and ideological leanings; x Regulating: reversing and affirming district courts based upon ideological preferences at a higher rate while showing little ideological conflict on appellate panels; x Steadfast: acting as polarizing lightning rods to judges of all ideologies; x Collegial: strongly valuing norms of consensus with all other judges; x Incrementalist: exhibiting some ideological leanings, but having few battles with copanelists; x Minimalist: deciding in a manner highly deferential to district courts; and x Error Correcting: not acting ideologically or as a partisan toward district courts, but still showing little deference to those courts. This typological approach offers the most comprehensive explanation of judicial behavior based upon empirical data. The judicial style typology paints a fuller explanation of judicial behavior while not oversimplifying outcomes as being the sole products of ideology, strategy, or law. Returning to the example of Judge Sutton’s vote in the ACA case, the empirically based typology is entirely consistent with Judge Sutton’s decision to uphold the law. Judge Sutton is a Regulating Moderate judge18: he is not particularly concerned with the ideological direction of circuit law and is more focused on the specific issues in the district court opinions under review. His Ideology Score (-1.8 on a scale from -100 to 100) places him almost at the ideological center point (supporting the label “Moderate”), in contrast to popular perception. Notably, his Independence Score (65.1 on a scale from 0 to 100) indicates he is well above average in dissenting and concurring from judges of all political backgrounds, which fits well with his decision to write separately from both Judges Martin and Graham.19 Although no single case either proves or disproves a larger theory, it is worth noting that among the competing qualitative and quantitative approaches, only the model described in this Article is consistent with one of the highest profile decisions of a court of appeals panel in recent memory. Further, as discussed in Part III.D, the typology as

18 See infra Part III.B and App. C. 19 See infra App. B.

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107:1757 (2013) A Typology of Judging Styles applied to other high-profile judges is highly consistent with conventional wisdom. After having identified the nine styles of judging and comparing those styles to qualitative assessments of those judges, this Article examines whether the judicial style types identified are correlated with background characteristics of the judges studied. A judge’s decisionmaking style is correlated with, among other factors, ranking of law school attended, whether a judge had taken senior status, and the appointing President’s political party. Of particular note, judges of the most contentious types (Steadfast, Stalwart, and Trailblazing) on average attended law schools ranked nearly thirty places higher than those judges associated with collaborative styles (Collegial and Consensus Building). Certain styles were also strongly associated with the party of the appointing President. Steadfast judges were much more likely to have been appointed by Democratic Presidents, whereas Incrementalist and Trailblazing judges were primarily appointed by Republicans. This Article is not designed to complete the project of identifying different styles of judging. Instead, it represents proof of concept. The methods and results described herein are meant to demonstrate new possibilities and directions in academic research about judicial behavior. Indeed, with more data, dimensions of behavior, and/or judges studied, I hope that the typology described in this Article is improved upon, revised, and ultimately replaced. Part I of this Article briefly discusses existing research and the dominant views pertaining to judicial decisionmaking, particularly for judges on the courts of appeals. Part II describes in detail the underlying study design, data, and four behavioral measures (activism, ideology, independence, and partisanship). Part III outlines the statistical process used to identify the differing judicial styles and discusses the salient traits of each type of judging style. Part IV analyzes background and demographic characteristics of individual judges to determine if they predict judge decisionmaking styles. Consistent with the goal of making empirical legal studies more accessible to a broader audience,20 this Article avoids empirical research jargon whenever possible and utilizes graphical representations.21 However, the statistical information traditionally found in empirical legal studies is located in the footnotes and appendices at the end of this Article.

20 Lee Epstein, Andrew D. Martin & Matthew M. Schneider, On the Effective Communication of the Results of Empirical Studies, Part I, 59 VAND. L. REV. 1811, 1814 (2006); Fischman & Law, supra note 14, at 135–36. 21 Lee Epstein, Andrew D. Martin & Christina L. Boyd, On the Effective Communication of the Results of Empirical Studies, Part II, 60 VAND. L. REV. 801, 804–05 (2007).

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I. UNDERSTANDING JUDICIAL DECISIONMAKING Judges have been objects of study for decades, but in recent years there has been an explosion of empirical research about how judges decide cases.22 In political science and law, scholars have placed a particular focus on the role of political ideology in shaping judicial decisions.23 The Supreme Court has been the primary judicial body studied,24 often to the neglect of courts that have a greater net impact on the development of American law.25 As Judge Richard Posner noted, “[T]he Supreme Court reviews only a minute percentage . . . of court of appeals decisions. Entire fields of law are left mainly to the courts of appeals to shape.”26 Notably, scholars tend to assume that the theories and models of Supreme Court decisionmaking describe the behavior of judges in general.27 However, the modern Supreme Court has been atypical in many ways and studies have shown that what has held true for the Justices is largely inapplicable to lower courts like the federal courts of appeals.28 With approximately seventy-five cases per year,29 the amount of law reviewed by the Supreme Court is very limited.30 Further, actions by Supreme Court Justices are essentially unconstrained;31 Justices are free to vote in any manner based on any rationale with limited repercussions for their career. When a person is appointed to the Court, she has life tenure with almost no possibility of impeachment based upon judicial

22 Jeffrey M. Chemerinsky & Jonathan L. Williams, Foreword, Measuring Judges and Justice, 58 DUKE L.J. 1173, 1174 (2009); Jack Knight, Are Empiricists Asking the Right Questions About Judicial Decisionmaking?, 58 DUKE L.J. 1531, 1535 (2009); Gregory C. Sisk, The Quantitative Moment and the Qualitative Opportunity: Legal Studies of Judicial Decision Making, 93 CORNELL L. REV. 873, 874 (2008). 23 See Fischman & Law, supra note 14, at 168–70; Gregory C. Sisk & Michael Heise, Judges and Ideology: Public and Academic Debates About Statistical Measures, 99 NW. U. L. REV. 743, 744 (2005). 24 Frederick Schauer, Incentives, Reputation, and the Inglorious Determinants of Judicial Behavior, 68 U. CIN. L. REV. 615, 621 (2000). 25 See Richard A. Posner, Judicial Behavior and Performance: An Economic Approach, 32 FLA. ST. U. L. REV. 1259, 1273 (2005). 26 Id. 27 Tracey E. George, Developing a Positive Theory of Decisionmaking on U.S. Courts of Appeals, 58 OHIO ST. L.J. 1635, 1665 (1998) (“The attitudinal and strategic theories of judicial behavior described above have been developed almost entirely through a consideration of the behavior of U.S. Supreme Court justices.”). 28 See Richard A. Posner, The Role of the Judge in the Twenty-First Century, 86 B.U. L. REV. 1049, 1054 (2006); Schauer, supra note 24. 29 FRANK B. CROSS, DECISION MAKING IN THE U.S. COURTS OF APPEALS 2 (2007) [hereinafter CROSS, DECISION MAKING]. 30 See id. 31 See Posner, supra note 28.

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107:1757 (2013) A Typology of Judging Styles performance32 and no realistic chance of promotion to incentivize, and therefore constrain, her behavior. In contrast, the court of appeals judges continue to review an enormous number of cases from varied areas of law;33 are constrained by the Supreme Court, en banc review, and other panel decisions;34 and can be evaluated based upon performance before potentially being elevated to the Supreme Court.35 Nonetheless, the major decisionmaking models used to describe lower court behavior have been largely transplanted from empirical research of the Supreme Court.36

A. Law, Strategy, and Politics Three basic models define the debate regarding judicial decisionmaking among legal and political science scholars. The attitudinal model contends that judicial choices are best explained by ideology.37 The strategic model identifies institutional and personal incentives as the explanation for judicial behavior.38 The formal model views doctrine, precedent, and interpretation of codified law as central to decisions by judges.39 The dominance of the attitudinal, strategic, and formal models of decisionmaking can best be understood through a brief history of their origins. Much of the modern empirical research about judges initially derived from political science models of legislatures.40 Such conceptions of

32 See, e.g., Philip D. Oliver, Systematic Justice: A Proposed Constitutional Amendment to Establish Fixed, Staggered Terms for Members of the United States Supreme Court, 47 OHIO ST. L.J. 799, 800 (1986) (explaining that, under the Constitution, Justices enjoy life tenure and can only be removed by impeachment proceedings, and pointing out that no Justice has ever been successfully impeached). 33 See CROSS, DECISION MAKING, supra note 29. 34 See Posner, supra note 28; see also Charlie Savage, Uncertain Evidence for ‘Activist’ Label on Sotomayor, N.Y. TIMES, June 20, 2009, at A10 (“Supreme Court justices have a freer hand than appeals court judges.”). 35 See Stephen Choi & Mitu Gulati, A Tournament of Judges?, 92 CALIF. L. REV. 299, 303 (2004). 36 George, supra note 27. 37 See generally JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED 6 (2002) (outlining the theory that judges make decisions based on policy preferences). 38 Posner, supra note 28, at 1056 (suggesting that the desire to obtain celebrity, to wield power, or to “play the judicial game” drives judges to work hard). 39 See generally Harry T. Edwards & Michael A. Livermore, Pitfalls of Empirical Studies that Attempt to Understand the Factors Affecting Appellate Decisionmaking, 58 DUKE L.J. 1895 (2009) (contending that the hidden deliberative process of judging belies a process with strong adherence to rules and laws); see also Harry T. Edwards, The Effects of Collegiality on Judicial Decision Making, 151 U. PA. L. REV. 1639, 1663–64 (2003) (“Institutional rules and norms motivate judges to behave in ways that further the institutional mission. They help to form judges’ motivations and influence how they do their job. . . . In my view, ‘institution’ broadly includes the rule of law, not just the court on which a judge sits, or local circuit precedent. . . . [M]ost fundamentally, we feel that we owe a duty to the law itself.”). 40 Knight, supra note 22, at 1536.

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decisionmaking relied on spatial models that sought to identify ideological distance among individual legislators.41 Early studies of the courts viewed judicial decisions as policy choices similar to those made by legislators.42 Modern judicial decisionmaking research’s legislative roots helped spawn the attitudinal model.43 Proponents contrasted the attitudinal model with the formal model of law, which attitudinalists often constructed more as a straw man than an actual position taken by scholars.44 Modern adherents to the formal theory of decisionmaking do not argue that every case has been decided solely by mechanical application of the law, but contend that neutral judges resolve the large majority of legal disputes by determinate rules.45 The formalists cite the differences between the Supreme Court and other courts to explain the varying centrality of ideology in decisionmaking.46 The strategic model addresses the personal and institutional goals of judges, which is missing from both the formal and attitudinal models. As Judge Posner explained: Judges have a utility function, as economists refer to a person’s system of preferences, just like everybody else . . . . I think most judges (I have in mind particularly federal appellate judges, the slice of the judiciary that I know best) are guided in their judicial performance primarily by two objectives that are different from and more interesting than a desire for leisure or a thirst for celebrity. One is a desire to change the world for the better (which to the cynical is simply a desire to exercise power—and the ability to exercise even modest power is indeed a perk of being a judge). The other is to play the judicial game.47 Generally, advocates of the strategic model have not embraced a strong version of the theory that incentives have dictated all judicial decisions. Instead, like those who have supported the attitudinal and formal models, they have made concessions to incorporate the other theories.48 With the three global theories of decisionmaking in place, much recent scholarship in the area focuses on determining the degree to which each

41 Id. (“The models were standard spatial models that sought to analyze legislative votes as a function of the ideological distance between a legislator’s ideal preference point and the utility point of the proposed piece of legislation under consideration.”). 42 Id. at 1536–37 (“In these early studies judicial choices were operationalized, not as dispositional votes, but rather as measures of the substantive policy consequences of the decisions.”). 43 See LENDON SCHUBERT, THE JUDICIAL MIND: THE ATTITUDES AND IDEOLOGIES OF SUPREME COURT JUSTICES 1946–1963, at 6 (1965); Knight, supra note 22, at 1536. 44 See H. Jefferson Powell, A Response to Professor Knight, Are Empiricists Asking the Right Questions About Judicial Decisionmaking?, 58 DUKE L.J. 1725, 1725 (2009). 45 See Edwards & Livermore, supra note 39, at 1897–98. 46 See id. at 1897, 1904. 47 Posner, supra note 28, at 1056. 48 See id. at 1054–56.

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107:1757 (2013) A Typology of Judging Styles theory explains portions of decisionmaking in different court settings.49 Regarding the United States Courts of Appeals, Professor Frank Cross comprehensively treated the three theories and found some evidence to support the attitudinal model, more to indicate formal constraints on decisionmaking, and almost none to corroborate the strategic theory.50 Because Cross’s study was the first to systematically assess the three models as applied to the courts of appeals,51 its value in this area has been substantial. In many ways, it was the pinnacle of what could be done with existing data and the three major models in studying federal appellate judges. However, the Cross study also illustrated how data and model limitations have fundamentally constrained the study of decisionmaking in the courts of appeals. Cross, like most every other researcher engaged in the comprehensive study of those courts, used the United States Courts of Appeals Database (Songer Database),52 which included more than 18,000 opinions from 1925 to 1996.53 Because the database sampled from the full range of circuits during such a long time frame, it included just a handful of opinions from each circuit in a given year. As a result, it was virtually impossible to use the Songer Database for individualized assessments of judges in any given time frame. Further, although the coding was very extensive in some areas (such as case issues), it was not able to be utilized at all for the ideology, activism, independence, and partisanship metrics described in this Article because the data neither included information about the district court judge being reviewed by an appellate panel nor had adequate data for individual judges.54 While the Songer Database has been an extremely valuable resource, research based upon it epitomizes the homogeneity, unidimensionality, and isolation assumptions of judicial decisionmaking. More recently, perspectives from other fields have emerged and pushed the discussion beyond the three reigning models in scholarly debates.55 Judge Posner’s attempt to give readers a peek into judicial

49 See, e.g., George, supra note 27, at 1640–41 (testing a combination of the attitudinal and strategic models in Fourth Circuit en banc cases). 50 Cross, Decisionmaking, supra note 5, at 1514–15. 51 Id. at 1461. 52 Id. at 1498. 53 KUERSTEN & SONGER, supra note 16. 54 It is theoretically possible that the Songer Database would have allowed for the independence measure because independence is solely determined by dissents and concurrences on three-judge panels, but the passing of time and small sample sizes for judges with limited times on the bench would create problems for the reliability of any results. Although the Songer Database included a field for standard of review, which was essential to the measures in this Article, coding was limited to instances of agency review and not lower court review. 55 See, e.g., Dan Simon, A Psychological Model of Judicial Decision Making, 30 RUTGERS L.J. 1 (1998).

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chambers in How Judges Think, which identified nine theories of decisionmaking from a range of academic disciplines, is particularly notable.56 In addition to the three major models, Posner discussed sociological, organizational, psychological, economic, pragmatist, and phenomenological theories.57 However, the additional theories investigated by Posner have not yet been subject to the rigor of empirical analysis at the level applied to the political science models.58

B. Studies of Judicial Methods, Similarity, and Interrelations While the three leading models described above have predominated empirical research by political science and legal scholars, a separate strain of inquiry over the last thirty years has targeted the diversity of types of judges. In 1981, Professor J. Woodford Howard published a study based upon surveys of judges sitting on three federal courts of appeals.59 Howard identified three types of judges: (1) innovators who sought to inject new ideas into the law, (2) interpreters who believed that the role of the judge was limited to discerning meaning, and (3) realists who embraced portions of the other two theories.60 More recently, Professor David Klein’s survey of federal appellate judges acknowledged the diversity of approaches used, but did not construct a formal typology.61 By utilizing citations of circuit court opinions by the Supreme Court, Professors Jeffrey Berger and Tracey George found a particular type of “judicial entrepreneur” that seemingly sought greater notoriety from the Supreme Court at the federal appellate level.62 Professors Frank Cross and Stefanie Lindquist recently summarized the prevailing research concerning diverse judging approaches, which has not been interwoven into most empirical research about how judges render decisions described in the previous section: Judges are a diverse lot, like any group of humans. They value different things in the course of rendering their decisions. Some may be more ideological in their judgments. Some may be more traditionally legalistic in their decisionmaking. Others may be pragmatic. As the surveys show, different judges view their roles differently. Judges place different emphases

56 RICHARD A. POSNER, HOW JUDGES THINK 19–56 (2008). 57 Id. 58 See id. 59 J. WOODFORD HOWARD, JR., COURTS OF APPEALS IN THE FEDERAL JUDICIAL SYSTEM: A STUDY OF THE SECOND, FIFTH, AND DISTRICT OF COLUMBIA CIRCUITS (1981). 60 Id. at 160–63. 61 DAVID E. KLEIN, MAKING LAW IN THE UNITED STATES COURTS OF APPEALS 21–27 (2002). 62 Jeffrey A. Berger & Tracey E. George, Judicial Entrepreneurs on the U.S. Courts of Appeals: A Citation Analysis of Judicial Influence 7–8, 19–20 (Vanderbilt Univ. Law Sch., Law & Econ. Working Paper No. 05-24, 2005), available at http://ssrn.com/abstract=789544.

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on the tradeoff between their roles as “generators of precedents” and resolvers of disputes.63 It is not at all revolutionary to recognize that judges from varied backgrounds, living in different geographic locations, nominated under distinct political conditions, and having a range of ideological and legal views, have different decisionmaking methodologies. However, empirical research of judicial decisionmaking has done little to build upon the recognized differences among individual judges. Similar to work that questions the homogeneity assumption, some efforts have been made to test the unidimensionality premise for Supreme Court Justices.64 Further, panel effects research has also been extremely valuable in breaking down the idea that judges are separate islands rendering independent decisions.65 However, such research has yet to incorporate multiple levels of the judiciary and has only examined the interrelations between judges on three-judge panels.66 The study described in this Article attempts to expand upon the work of scholars that have recognized judicial heterogeneity, multidimensionality, and interconnectedness. In order to do so, I created four separate measures of federal appellate judge behavior for judges on the courts of appeals.

II. BEHAVIORAL MEASURES The primary method of measuring traits of the federal appellate judges has been the use of static proxy techniques. For example, studies of judicial ideology have most commonly used the appointing President’s political party as a proxy for the judge’s ideology.67 Utilizing such a measure treats all Republican and all Democratic appointees as identical, does not incorporate any decisions by the judges, and assumes a President makes appointments solely upon ideological concerns.68 There has been a growing call by some scholars to move from such static proxy measures of judges to metrics derived from the actual behavior of judges.69 This study answers that call by utilizing multiple behavioral metrics to form a typology of judicial styles. In order to move beyond traditional proxies of judicial traits

63 Frank B. Cross & Stefanie Lindquist, Judging the Judges, 58 DUKE L.J. 1383, 1416 (2009). 64 See, e.g., Paul H. Edelman & Jim Chen, The Most Dangerous Justice Rides into the Sunset, 24 CONST. COMMENT. 199, 200 (2007) (“To account for and accommodate these alternative dimensions, our earlier research constructed a method for identifying the most powerful Justice without relying on the assumption of unidimensional policy preferences. Instead, earlier efforts focused on the unique policy coalitions formed by the Justices in non-unanimous cases.” (footnote omitted)). 65 See, e.g., Cross & Tiller, supra note 15; Kim, supra note 15, at 1322; Revesz, supra note 15. 66 See, e.g., Cross & Tiller, supra note 15; Kim, supra note 15, at 1322; Revesz, supra note 15. 67 Fischman & Law, supra note 14, at 167–70. 68 See id. at 170–71. 69 Id. at 176–83.

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and provide sufficient information about individual judges throughout the federal court system, a new dataset was essential.

A. Data Gathering and Database Construction The underlying data outlined in this study have been used in related research,70 but several important changes have been made that are noted below. Data were gathered from published and unpublished 2008 opinions issued by the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuit Courts of Appeals. The analyzed dataset (Case Database) from those circuits included over 10,000 panel decisions and, as a result, over 30,000 votes by judges sitting on the courts of appeals.71 The Case Database was created from searches of LexisNexis databases of the courts of appeals that included standard of review language72 and excluded immigration73 and habeas corpus74 cases, which contained unique standard of review issues. Among other variables, cases were coded for: judges on the panel, whether individual judges were sitting by designation, appellate disposition, appellant, appellee, type of case (e.g., criminal or environmental), prevailing party, circuit, district court judge, district court, whether the case involved review of an executive agency decision, and standard of review used. In analyzing each case, the vote of each judge on the panel was coded separately, and thus a dissent by a judge in a case was coded so that the dissenting judge had the opposite view and disposition as the panel majority. This allowed for each judge’s behavior to be studied independently and collectively. The more recent version of the dataset was recoded using off-the-shelf computer software75 and scripting

70 See generally Yung, Activism, supra note 17 (using the earliest version of the data in this study to measure judicial activism); Yung, Ideology, supra note 17 (using the data to measure judicial ideology); Yung, Partisanship, supra note 17 (using the data to measure judicial partisanship and judicial independence). 71 The normal assumption that there would be three judicial votes for each panel in the dataset slightly overestimates the number of actual votes. There were a few instances where only two judges issued an opinion due to a death or recusal of a panel member. There were also instances when a single judge would issue an order without sitting on a three-judge panel. 72 For each of the courts of appeals databases in LexisNexis, the following search was executed and all of the results were downloaded and coded: “date aft 1/1/2008 and date bef 1/1/2009 and (“De Novo” or Clear! Erro! or (Arbitrar! w/3 Capricious!) or (Abus! w/3 Discretion) or “Substantial Evidence” or “Standard of Review”) and not immigration and not habeas.” 73 See Hiroshi Motomura, Immigration Law and Federal Court Jurisdiction Through the Lens of Habeas Corpus, 91 CORNELL L. REV. 459, 474 (2006) (discussing how large portions of immigration case review—those by the Board of Immigration Appeals—are based upon a collateral review model, which “revise[s] the standard of review to require greater deference to an immigration judge’s findings of fact”). 74 See Brandon Scott, When Child Abuse Becomes Child Homicide: The Case of Gilson v. Sirmons, 34 OKLA. CITY U. L. REV. 281, 293–94, 305 (2009) (discussing the “unique standard of review” in federal habeas cases due to the Antiterrorism and Effective Death Penalty Act). 75 The software used was TextConverter 3, which is available at http://simx.com/.

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107:1757 (2013) A Typology of Judging Styles in Visual Basic.76 The automated coding process searched for over 100 relevant variables in the header fields and text of opinions. Human coding was used to supplement, quality check, and ensure reliability of the automated coding.77

B. Decisionmaking Metrics Instead of merely focusing on ideology as the determining factor in judicial decisionmaking, I sought to understand and measure how judges vote along multiple dimensions. Because the decisionmaking measures described below have been expounded upon in prior scholarship,78 the discussion is limited to the necessary elements of each and the basic methodologies used for their computation. In some instances, notes about modifications to previously used methodologies have been included as

76 In the prior studies, data coding was performed exclusively by law student research assistants and the Author. Due to inconsistencies among and within the courts of appeals in formatting opinions, automated coding was not foolproof. However, quality checking indicates that the automated coding for every variable in this study is superior to the human coding done in prior editions of the dataset. See Yung, Activism, supra note 17; Yung, Ideology, supra note 17; Yung, Partisanship, supra note 17. Because the prior human coding had already been performed for over 96% of the cases in the new dataset, the human and computer coding were integrated. In particular, because some circuits have not regularly or ever reported the identity of the district court judge whose judgment was reviewed, human coding was essential in that area. When there were discrepancies in coding between the two systems, I resolved the differences by using my judgment as to how the variable should be coded. Some changes in the coding, which may have accounted for some of the different scores used in this study, included: separating decisions to vacate, reverse, remand, and reverse in part; coding of concurrences; to the degree possible, determining which standard of review was actually applied when multiple standards were listed; correcting errors in the source data downloaded from LexisNexis; further quality checking; coding of the actual opinion writer (as opposed to merely including them in the majority); and removing votes recorded on the decision to not hear a case en banc. 77 Reliability is the degree to which the measurement would yield the same results when applied by others. Lee Epstein & Gary King, The Rules of Inference, 69 U. CHI. L. REV. 1, 83 (2002). Because this study is the first to systematically identify judicial styles for judges on the courts of appeals, it is impossible to compare the results directly with other research. Instead, reliability can only be evaluated by the quality of the coding and analysis. Since this is not the first study using some version of this dataset, see Yung, Activism, supra note 17, at 25–26; Yung, Ideology, supra note 17, at 1155–57; Yung, Partisanship, supra note 17, at 522–24, some of the discussion here is abbreviated. Case data were downloaded from LexisNexis for each of the circuits studied, which provides a stable platform for replication by other researchers. Many of the variables were coded by computer software, which should provide a high level of consistency among studies. The remaining data were coded by law students and recent law school graduates. On both the computer and human coded variables, quality checking was performed by other student and graduate coders as well as the Author. A variety of checks were performed to ensure internal consistency of variables that were necessarily interconnected. For example, the party labels in the coding include “criminal defendant.” Such a party label precluded “civil plaintiff” or “civil defendant” from appearing in the outcome variable. Many cross-checks were employed to ensure quality and correct errors within the dataset. 78 See generally Yung, Activism, supra note 17 (measuring judicial activism of judges); Yung, Ideology, supra note 17 (measuring ideology of judges); Yung, Partisanship, supra note 17 (measuring independence and partisanship of judges).

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well. This research isolated and measured four dimensions: activism, ideology, independence, and partisanship. 1. Activism.—One of the most commonly used words to describe judicial behavior in public discourse is “activism.”79 A judge has been thought to exhibit activist traits if he fails to defer when expected.80 In the aggregate, a more activist judge will more often place his views above legislatures, executive branches, and other judges.81 When viewed in this way, activism can be thought of as a morally neutral concept.82 Activism is something in which all judges engage—it is just a question of degree. The measurement of activism described below is designed as a relative assessment of how likely a judge is to defer compared to other judges studied. The precise definition used for this empirical study was: Activism occurs when judges do not defer to constitutionally significant actors when a formal model of legal decisionmaking would predict otherwise.83 Although it has been generally difficult to reach anything approaching consensus on what a formal model of law would predict, analysis of standards of review in the courts of appeals provides an effective baseline.84 Standards of review have been used by federal appellate courts to indicate when they should defer to lower court judgments and when no deference is required.85 A judge who has regularly discounted deferential standards of review by reversing lower court judgments can be said to be more activist in the aggregate than a judge who has reversed less often in such situations. To remove ideological differences and other strategic motivations from the concept of activism, it was necessary to compare a judge’s behavior when using deferential and nondeferential standards of review. When applying a de novo (nondeferential) standard, judges were expected to reveal their true preferences. In contrast, it was expected that those preferences would be suspended from time to time when applying a deferential standard. Based upon those premises, the basic measurement for activism used in this study was:

79 Keenan D. Kmiec, Comment, The Origin and Current Meanings of “Judicial Activism,” 92 CALIF. L. REV. 1441, 1442–44 (2004). 80 See Yung, Activism, supra note 17, at 9. 81 Id. 82 See Robert Justin Lipkin, We Are All Judicial Activists Now, 77 U. CIN. L. REV. 181, 203 (2008); Ernest A. Young, Judicial Activism and Conservative Politics, 73 U. COLO. L. REV. 1139, 1144 (2002). 83 See Yung, Activism, supra note 17, at 19. 84 For a discussion of the general neglect of baselines in empirical legal research and the problems it has created, see generally Brian Z. Tamanaha, Devising Rule of Law Baselines: The Next Step in Quantitative Studies of Judging (Wash. Univ. in St. Louis Sch. of Law, Faculty Research Paper Series, Paper No. 10-02-02, 2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1547981. 85 See Cross, Decisionmaking, supra note 5, at 1502–03.

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Raw Activism Differential = Reversal rate using deferential standard – Reversal rate using de novo standard86 Thus, judges with a higher Raw Activism Differential exhibited greater activism because they reversed lower court decisions using a deferential standard more often relative to unconstrained situations. The Raw Activism Differential was adjusted to reflect the particular circuit on which a judge sat, the mix of case issues each judge had, any “super-panel” effects87 that might have been experienced by the judge, and scaling to a common system. Greater detail about these adjustments can be found in Appendix A.88 2. Ideology.—Scholars seeking to measure, explain, and predict judicial behavior primarily target judicial ideology.89 Although there has been some variation in definitions of ideology,90 substantially less controversy surrounds the concept of ideology than activism. The very basic definition used in this study was: Judicial ideology is the set of political beliefs that guide judicial decisions in some cases.91 This study utilized what has become known as an agnostic measure.92 Such measures rely on the idea that those who have similar ideologies will vote together more often and those who have dissimilar ideologies will disagree more often. With enough data, a researcher could identify groups with similar ideologies. And with some prior assessments about who is more likely to be conservative and liberal, researchers can apply agnostic scoring systems. Agnostic measures have the advantage over other behavioral techniques because they can be applied to large populations of data far more easily. A researcher could merely identify the disposition of an appellate panel’s judgment (e.g., affirmed, reversed, etc.) and any voting blocs among the panelists. However, almost 98% of panels in the courts of appeals in recent years have voted unanimously, which, because of the lack of observable differences, has prevented the use of agnostic measures entirely for those courts. Including the district court judge in the super-panel of judges produced greater information and resolved the unanimity problem. Reversals of

86 See generally Yung, Activism, supra note 17, at 22. 87 A super-panel is comprised of “the three appellate judges and the district judge whose decision is being reviewed.” See Yung, Partisanship, supra note 17, at 553–54. 88 The mean Activism Score was 51.3, and the standard deviation was 16.7. The data were scaled linearly where a 0 score corresponded with a -32.4% adjusted Raw Activism Differential and a 100 score indicated a +23.2% adjusted Raw Activism Differential. 89 See Fischman & Law, supra note 14, at 135. 90 Id. at 135, 137. 91 See Yung, Ideology, supra note 17, at 1140. 92 Fischman & Law, supra note 14, at 162–65.

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district court judgments have been far more common than dissents on appellate panels. As a result, integrating disagreements between appellate judges and district court judges gave the study more points of comparison for the creation of an accurate ideology scoring system. When a judge on a federal appellate court reviewed the judgment of a district court judge, the appellate judge had three interactions that could yield information about the appellate judge’s ideology (two interactions with copanelists and one with the district judge). Using this agnostic coding system, the basic measurement of a judge’s ideology was: Raw Ideology Score = Rate of Agreement with Judges Appointed by Republican Presidents – Rate of Agreement with Judges Appointed by Democratic Presidents93 A judge with a lower Raw Ideology Score was more liberal than a judge with a higher Raw Ideology Score (matching the traditional left-to- right spectrum). Numerous adjustments were made to the Raw Ideology Score to provide a valid measure. Most significantly, because the district judge occupied a different role than copanelists, the rate of agreement with the district judge was measured separately. As a result, agreements with the district judge in the form of affirmances were adjusted by standard of review used and type of case (criminal or civil). A Raw Ideology Score was then computed for both the panel and district judge interactions. Those scores were combined based upon the rate of disagreement at each level and further adjusted to include specific circuit adjustments, further case- issue-mix adjustments, any super-panel effects experienced by the judge, and scaling to a common system. These later adjustments are described in greater detail in Appendix A.94 3. Independence.—Independent judges are thought to be more likely to “stick to their guns” and less likely to reach compromises with other judges.95 Notably, like activism and ideology, independence was not a positive or negative quality for a judge—it was simply another trait that

93 See Yung, Ideology, supra note 17, at 1169–70. 94 The mean Ideology Score was 2.9, and the standard deviation was 20.9. The data were linearly scaled where a -100 corresponded with a -21.4% adjusted Raw Ideology Score and a 100 indicated a 15.5% adjusted Raw Ideology Score. 95 Recent studies have identified independence as a characteristic of judicial behavior worthy of empirical investigation. See, e.g., Stephen Choi & Mitu Gulati, Essay, A Tournament of Judges?, 92 CALIF. L. REV. 299, 310 (2004) [hereinafter Choi & Gulati Essay]; Stephen J. Choi & G. Mitu Gulati, Choosing the Next Supreme Court Justice: An Empirical Ranking of Judge Performance, 78 S. CAL. L. REV. 23, 61 (2004); Stephen J. Choi & G. Mitu Gulati, Mr. Justice Posner? Unpacking the Statistics, 61 N.Y.U. ANN. SURV. AM. L. 19, 38 (2005). The study described in this Article conceived of and measured independence in a similar, but distinguishable manner from prior attempts. Unlike prior research, this study recognized that when other judges dissented from or concurred with a studied judge, that action was also an indicator of the studied judge’s independence. After all, the difference between dissenting and being dissented against is simply how the third judge on the panel voted.

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107:1757 (2013) A Typology of Judging Styles described tendencies in behavior. This basic definition of judicial independence was used: A more independent judge is one that is more apt to provoke minor and major disagreements with other judges beyond what ideological differences would predict.96 Two types of disagreements were incorporated in the measurement: concurrences and dissents. In both situations, a judge presumably writes separately because she cannot find common ground with other written opinions. The following formula was used to determine the Raw Independence Score: Raw Independence Score = Rate of Dissents (including copanelist dissents) + Rate of Concurrences (including copanelist concurrences) – Expected Rate of Dissents (including copanelist dissents) – Expected Rate of Concurrences (including copanelist concurrences)97 To remove disagreements based upon ideological differences, it was necessary to determine the rate at which ideological variance accounted for concurrences and dissents so that the Raw Independence Score could be untangled from the Raw Ideology Score (yielding expected rates of dissent and concurrence). The projected dissent and concurrence rates for each judge were computed based upon the degree to which a judge’s Raw Ideology Score differed from the mean of the circuit on which the judge was appointed. The projected disagreement rates were subtracted from the observed rates. Three additional adjustments were made to the Raw Independence Scores. The values were adjusted so that each judge’s scores were based upon average criminal and civil case mixes, placed on a logarithmic scale (to create a normal distribution), and scaled to a common system.98 The case mix and common scaling adjustments are further explained in Appendix A.99 4. Partisanship.—In the few instances where scholars have referred to partisanship in empirical research, they have not considered it separately from ideology and activism.100 Normally, researchers have considered partisanship a negative attribute indicating ideological decisionmaking.101

96 Yung, Partisanship, supra note 17, at 517. 97 See id. at 518. 98 Because of limited instances of judges issuing concurrences or dissents when traveling to other circuits, a separate circuit adjustment was not performed for the Independence Scores. 99 The mean Independence Score was 44.1, and the standard deviation was 15.3. The data were logarithmically scaled, but before scaling a 0 corresponded with a -10.0% adjusted Raw Independence Score and a 100 indicated a 24.9% adjusted Raw Independence Score. 100 See, e.g., Cross & Tiller, supra note 15. 101 See, e.g., Daniel E. Ho & Kevin M. Quinn, How Not to Lie with Judicial Votes: Misconceptions, Measurement, and Models, 98 CALIF. L. REV. 813, 817 (2010).

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Despite that shortcoming, “partisanship” and its opposite “indifference” were chosen because they best reflected the behavior being studied. Partisanship, unlike ideology, focuses more on party loyalty than ideological outcomes of cases. As with the other measures, the goal of this study was to treat partisanship as morally neutral behavior exhibited by judges on a relative scale. The basic definition of partisan behavior used in the study was: A judge is acting in a more partisan manner when he or she applies a neutral legal rule in a manner that demonstrates greater deference to members of a particular political party.102 Notably, partisanship does not require conscious thought by a judge. It is simply a measure of whether a judge is more apt to defer to those of the same appointing party, whether the judge is aware of it or not. Like the Raw Activism Score, the Raw Partisanship Score focused on the standard of review as the baseline for identifying partisan behavior. If a judge deferred more often to a district judge appointed by the same political party, she was more partisan than a judge who deferred at the same rate to judges appointed by either party. And similar to the Raw Activism Score, the partisanship measure was focused exclusively on appellate and district court interactions. The following formula provided the Raw Partisanship Score: Raw Partisanship Score = (Deferential Reversal Rate of Democratic District Judges – Deferential Reversal Rate of Republican District Judges) – (Nondeferential Reversal Rate of Democratic District Judges – Nondeferential Reversal Rate of Republican District Judges)103 Several adjustments were made to the Raw Partisanship Score. The one unique alteration was related to the inclusion of the appointing party of the court of appeals judge so that a Democratic appellate judge who favored Republican district judges (not partisan) would be scored differently than a Democratic appellate judge who favored Democratic district judges (partisan). The Raw Partisanship Score was adjusted to reflect the particular circuit on which a judge sat, the mix of case issues each judge had, any super-panel effects that might have been experienced by the judge, and then scaled to a common system. Greater detail about these adjustments can be found in Appendix A.104 5. Differences Among Scores.—There was some concern that there would be overlap between the Ideology, Activism, and Partisanship Scores

102 Yung, Partisanship, supra note 17, at 519. 103 Id. at 521. 104 The mean Partisanship Score was 44.8, and the standard deviation was 15.3. The data were linearly scaled—a 0 corresponded with a -73.7% adjusted Raw Partisanship Score, and a 100 indicated an 89.8% adjusted Raw Partisanship Score.

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107:1757 (2013) A Typology of Judging Styles if they measured similar, related behavior, especially because the terms are sometimes used interchangeably. As a result, I tested the three Scores, which some might believe to be too intertwined to provide separate dimensions of study, to determine statistical relationships. Notably, there were identified judges of all combinations of high and low Partisanship, Activism, and Ideology Scores. For example, then-Judge Sonia Sotomayor had a moderate Ideology Score (17.3), a low Activism Score (39.3), and a Partisanship Score nearly one standard deviation above the mean (57.2). Further, based upon robust linear regression, the Activism, Partisanship, and Ideology Scores were not correlated in a statistically significant manner.105 The data indicates that the Partisanship, Ideology, and Activism Scores describe separate behavior. 6. Selection Effects.—There is an inherent concern in studying federal courts that the measures used might be the product of selection effects and, thus, not really indicative of the concept measured.106 A

105 For Activism and Ideology Scores, p = 0.6530; Activism and Partisanship Scores, p = 0.1754; Ideology and Partisanship Scores, p = 0.4057. Robust regressions were also done to compare the Ideological Scores (absolute value of the Ideology Scores) with the Partisanship Scores. For Activism and Ideological Scores, p = 0.7443; Partisanship and Ideological Scores, p = 0.8418. 106 See Keith N. Hylton, Asymmetric Information and the Selection of Disputes for Litigation, 22 J. LEGAL STUD. 187, 204 (1993); George L. Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. LEGAL STUD. 1, 55 (1984); Cass R. Sunstein, Judging National Security Post-9/11: An Empirical Investigation, 2008 SUP. CT. REV. 269, 271. The classic model of selection effects relies on the incentives of litigants. The Priest–Klein hypothesis predicts that if parties have perfect information, case outcomes should split evenly between affirmances and reversals, since the parties would settle as needed to avoid other outcomes. See Priest & Klein, supra, at 4–5. Numerous studies have examined whether empirical evidence supports the Priest–Klein hypothesis. See, e.g., Theodore Eisenberg, Testing the Selection Effect: A New Theoretical Framework with Empirical Tests, 19 J. LEGAL STUD. 337, 337–40 (1990); Randall S. Thomas & Kenneth J. Martin, Litigating Challenges to Executive Pay: An Exercise in Futility?, 79 WASH. U. L.Q. 569, 590–91 (2001); Robert E. Thomas, The Trial Selection Hypothesis Without the 50 Percent Rule: Some Experimental Evidence, 24 J. LEGAL STUD. 209, 222–26 (1995). The study described in this Article, consistent with prior examinations, provides ample reason to doubt the simple Priest–Klein hypothesis because the rate of affirmances is far higher than 50%, regardless of the standard of review used, in civil and criminal cases. Notably, the Priest–Klein model was limited to civil cases because the plea bargaining settlement structure in criminal cases creates radically different incentives, such that nothing close to a 50% affirmance rate results. See Priest & Klein, supra, at 46. However, at the federal appellate level, the cost of an appeal is very little compared to that of a trial. See Meehan Rasch, Not Taking Frivolity Lightly: Circuit Variance in Determining Frivolous Appeals Under Federal Rule of Appellate Procedure 38, 62 ARK. L. REV. 249, 264 (2009). This means that the chance of settlement before the appeal is considered to be quite low. Uncertainty about appellate outcomes also creates an environment where parties cannot reach agreement about the potential risks and costs. The legal issues are usually close in civil cases, Brian Z. Tamanaha, The Distorting Slant in Quantitative Studies of Judging, 50 B.C. L. REV. 685, 748 (2009) (“As the authors acknowledge, the subset of cases that are actually appealed following trial are more likely to have ‘a degree of indeterminacy in the law.’” (quoting CASS R. SUNSTEIN ET AL., ARE JUDGES POLITICAL?: AN EMPIRICAL ANALYSIS OF THE FEDERAL JUDICIARY 16 n.20 (2006))), and the parties do not know which judges will decide the appellate case until right before oral argument, Richard L. Revesz, Litigation and Settlement in the Federal Appellate Courts: Impact of Panel Selection Procedures on Ideologically

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selection effect occurs when a party other than the one being studied (e.g., a litigant) makes a decision (e.g., settlement) that is not accounted for by the study methods but should be.107 There were various moments when a selection effect could have occurred in the data that would create problems for the four behavior scores, including: prefiling, pretrial, during trial, pre- verdict, post-verdict, pre-appeal, during appeal, and post-appeal. These selection effects could distort the four behavioral measures if they intersect with a factor important to the party triggering the effect. However, the significance of selection effects in this study is more limited than other analyses of the courts of appeals because the underlying measures used to create the judicial typology are all relative in nature. They do not attempt to state that a judge is, for example, “liberal” by some external objective scale. Instead, the judicial type model merely states that relative to the other judges studied, one is, for example, more steadfast in her approach. Therefore, as long as judges have similar selection effects or the study accounts for uneven selection effects in some way, the selection effects should not limit the inferences drawn from the study. Further, the typology ultimately accounted for the differing selection effects in criminal and civil cases by adjusting individual judge scores to assume each judge had the average proportion of criminal and civil cases. Beyond that, it is unclear if there are any uneven selection effects among the judge population. To the degree that the parties know the substantive and procedural law of a circuit and make the same basic risk assessments, which is what a selection effects model would generally predict, one would expect that regardless of differences among the circuits and judges the projected odds in individual cases would be similar. As a result, selection effects should be largely the same across the body of cases reviewed by judges in this study. And the behavioral measures should, thus, not be distorted by such effects. Nonetheless, because selection effects inherently limit such studies, it is worth noting that it is difficult to discern if such effects had a prominent role in shaping the data and results of this study.

III. JUDICIAL STYLE TYPOLOGY Richard Eberhart once stated that “[s]tyle is the perfection of a point of view.”108 That is, the manner in which someone acts or presents herself reveals her perspective on the world. “Style” might seem an odd word to apply to what judges do because it lacks the grandiosity of “philosophy” and seriousness of “methodology.” However, because this study focuses on

Divided Courts, 29 J. LEGAL STUD. 685, 688 (2000). By that time, the briefing has been completed, id., settlement is unrealistic, and the marginal cost of oral argument is low. 107 See Kate Stith, The Risk of Legal Error in Criminal Cases: Some Consequences of the Asymmetry in the Right to Appeal, 57 U. CHI. L. REV. 1, 19 n.55 (1990) (“A selection effect may be defined as a causal relationship between the distribution of disputes and other variables of litigation.”). 108 RICHARD EBERHART, THE QUARRY 111 (1964).

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107:1757 (2013) A Typology of Judging Styles measuring the behavior of judges as manifested in outputs (judicial opinions and votes), it is the appropriate label to use. Judges might have had elaborate decisionmaking methods and/or committed judicial philosophies, but that does not mean they consistently exhibit such perspectives in opinions and votes. This could occur for several reasons. Judges may not practice what they preach. Their decisionmaking technique might only be applicable in some cases. Or, the methods or philosophy might point in conflicting directions. Further, there have been just a handful of judges with public records about their philosophies or methodologies from which any information could reliably and validly be inferred. In contrast, the concept of a judicial style focuses exclusively on the outward appearances of judicial decisionmaking. No references to or inferences about the decisionmaking process are made by the label “style.” Instead, the term stays true to the study methodology, which only considers the end result of the decisionmaking process and does not attempt to determine how such decisions were reached beyond the opinions published. As a result, individual judges may be wholly unaware of their style and disagree with the label applied in this study. Nonetheless, the data ultimately support the application of the particular style type to those judges.

A. Multidimensional Clusters of Judges To construct a viable typology of judges, the 178 studied judges with adequate data needed to be sorted into groups based upon common traits.109 This grouping was done with cluster analysis, a data analysis tool that categorizes data from one variable based upon similarities and differences across a set of other variables.110 I used Ward cluster analysis,111 which focuses on minimizing the variance of placing a judge in one group as opposed to another.112 In this case, judges were grouped according to their Activism, Ideological, Independence, and Partisanship Scores. Judges were grouped based on the absolute values of the Ideology Scores, such that a judge with a -60 score would be treated the same as one with a 60 score, to find commonalities in judicial style among persons on opposite ends of the

109 Judges had to have at least 200 total interactions with other judges to be included in the study. 110 See generally BRIAN S. EVERITT, SABINE LANDAU, MORVEN LEESE & DANIEL STAHL, CLUSTER ANALYSIS 13 (5th ed. 2011); Cross & Lindquist, supra note 63, at 1425 (“Cluster analysis is a statistical tool that enables like items to be grouped based on similarities and dissimilarities across a set of variables. . . . The procedure identifies the cases (individual judges) who share similarities with respect to certain variables . . . and groups them into categories, creating a sort of taxonomy of judges.”). 111 For a prior example of the use of Ward cluster analysis in a judicial decisionmaking study, see Cross & Lindquist, supra note 63, at 1425–29. Ward cluster analysis in this Article was performed using the software Stata. 112 See generally H. CHARLES ROMESBURG, CLUSTER ANALYSIS FOR RESEARCHERS 129–35 (2004).

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ideological spectrum. All four scores were on a scale of 0 to 100, with 100 indicating the highest level of that trait within the 178 judges. Because the clusters are formed along four separate dimensions, it is impossible to include a visual depiction of the shapes that enveloped the various clusters in a two-dimensional medium such as this Article. However, the commonalities among judges within each group can be seen in Appendix B where all of the judge scores are listed. To decide if a particular cluster was indeed a distinctive group and not merely statistically insignificant fluctuation in data values, I applied a basic standard deviation test: each identified cluster’s average scores had to deviate from every other cluster in at least one of the four behavioral scores by a standard deviation. Ultimately, using this technique, the data revealed nine separate judging style clusters. Figure 1 below indicates the number of average scores (Activism, Ideology, Independence, and Partisanship) that each cluster differed by at least one standard deviation from every other cluster. For example, Cluster 3 differed from Cluster 5 by a standard deviation in all 4 categories as can be seen looking at where the two clusters meet in Figure 1.

FIGURE 1: DIFFERENCES BETWEEN CLUSTERS (NUMBER OF SCORES DIFFERENT BY AT LEAST ONE STANDARD DEVIATION)

Cluster 1 2 3 4 5 6 7 8 9 1 — 1 4 3 3 3 3 1 3 2 1 — 3 4 3 2 1 3 3 3 4 3 — 3 4 3 3 4 3 4 3 4 3 — 2 2 1 2 3 5 3 3 4 2 — 2 3 2 1 6 3 2 3 2 2 — 1 1 1 7 3 1 3 1 3 1 — 2 1 8 1 3 4 2 2 1 2 — 1 9 3 3 3 3 1 1 1 1 —

These groups were then labeled according to the traits exhibited by their mean average scores. The nine identified judicial types are: Trailblazing, Consensus Building, Stalwart, Regulating, Steadfast, Collegial, Incrementalist, Minimalist, and Error Correcting.113 Individual judges in each group might have scores that deviate by a reasonable margin from the category mean scores, but the cluster analysis technique placed them in the appropriate group to minimize variation as compared to placing

113 These names were chosen to embody the characteristics of the four measures of each type. Further, my goal was not to make value judgments about particular types of judges. As a result, I tried to use positive-sounding words for each type even when the labels used are not typically applied to judges.

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107:1757 (2013) A Typology of Judging Styles that judge in an alternate group. Notably, as illustrated in Figure 2 below, the distribution among the judge style types was far from even.

FIGURE 2: DISTRIBUTION OF JUDGES AMONG STYLE CATEGORIES

45 42 40 34 34 35 32 30 25 20 16 15

Number Judges of 7 10 55 5 3 0

Each of the nine judging styles and the quantitative aspects that define each type are discussed in more detail below.

B. Judicial Styles Among the nine judicial style types, some groups have greater similarities than others. When possible, the critical differences among relatively similar groups are explained below. Further, the order of the styles discussed below was the one created by the statistical cluster analysis. Thus, to a degree the consecutive categories often, but not always, have commonalities. The descriptions are at times intentionally sparse in order to prevent making inferences beyond what is supported by the data.

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FIGURE 3: AVERAGE TRAILBLAZING JUDGE SCORES

100 90 80 70 61.3 60 53.4 51.3 50 44.8 44.1 37.2 40 33.1

Average Score Average 30 20 14.0 10 0 Ideological Activism Partisanship Independence

Trailblazing Average

Trailblazers are primarily in the business of carving out ideological decisions that shape circuit law and invite opposition by copanelists. Yet, review of district courts is less significant to these judges. As exhibited in Figure 3, Trailblazers exhibit high Ideological Scores (usually over two standard deviations from zero), high Independence Scores, low Activism Scores, and low Partisanship Scores. They have the second highest Ideological Scores of any group, but, contrary to the attitudinal model,114 their behavior is less partisan and activist toward the district courts than the average judge.

114 See supra note 37 and accompanying text.

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FIGURE 4: AVERAGE CONSENSUS BUILDING JUDGE SCORES

100 90 80 70 60 51.3 50 45.0 44.8 44.1 39.5 37.9 40

Average Score Average 30 23.1 20 14.0 10 0 Ideological Activism Partisanship Independence

Consensus Building Average

Consensus Builders are judges with strong ideological commitments who manage to encourage unanimity among appellate panelists with little partisan or activist review of the district courts. Figure 4 indicates that Consensus Builders, like Trailblazers, have very high Ideological Scores. Yet, again contrasting with the attitudinal model, which predicts ideological differences will cause voting differences,115 they have the lowest Independence Scores and typically below-average Activism and Partisanship Scores. That this group maintains strong ideology while inviting the least disagreement among the appellate judges indicates that they might be better at building voting blocs among ideologically diverse judges.

115 See supra note 37 and accompanying text.

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FIGURE 5: AVERAGE STALWART JUDGE SCORES

100 88.3 90 80 71.7 71.5 70 60 51.3 50 44.8 44.1 40 33.6

Average Score Average 30 20 14.0 10 0 Ideological Activism Partisanship Independence

Stalwart Average

Stalwart judges are the ideological and partisan leaders who take an active role in shaping circuit law and reviewing district court judgments. Stalwart judges had the highest Ideological, Activism, and Partisanship Scores of any judge type, as demonstrated in Figure 5. Interestingly, though, their Independence Scores were usually below the mean. Stalwarts were heavily involved in the review of district court judgments in a manner indicating a partisan bent. Yet, despite the clearest ideological decisionmaking of any judge type, they did not draw dissents and concurrences at rates expected by such strong ideological views. Stalwarts appeared to be the judges most consistent with the classic attitudinal model.

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FIGURE 6: AVERAGE REGULATING JUDGE SCORES

100 90 80 70 61.5 56.0 55.3 60 51.3 50 44.8 44.1 40

Average Score Average 30 20 15.0 14.0 10 0 Ideological Activism Partisanship Independence

Regulating Average

Regulating judges are focused on reviewing district court judges in a more partisan manner than the average judge. Regulating judges, as illustrated in Figure 6, typically have Activism, Partisanship, and Independence Scores above the mean, and average Ideological Scores. The Partisanship Scores are usually the highest rating for such judges. This means that Regulating judges are typically more likely to use partisan criteria to reverse the judgments of district court judges in situations where deference might be expected.

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FIGURE 7: AVERAGE STEADFAST JUDGE SCORES

100 90 81.6 80 70 64.0 60 51.3 50 44.8 44.1 37.4 40

Average Score Average 30 18.5 20 14.0 10 0 Ideological Activism Partisanship Independence

Steadfast Average

Steadfast judges might be thought of as the lightning rods of the federal appellate courts because they are more likely to disagree with or invite disagreement by other judges (including district judges). Yet, surprisingly, there is no indication that such judges did so in a particularly ideological manner or that ideology is the source of disagreement with other judges. The judges are Steadfast because their numerous disagreements apparently stem from other sources or are derived from limited willingness to compromise their points of view. As Figure 7 indicates, Steadfast judges have the highest Independence Scores of any type, elevated Activism Scores, and Ideological and Partisanship Scores that are close to the average.

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FIGURE 8: AVERAGE COLLEGIAL JUDGE SCORES

100 90 80 70 60 49.2 51.3 50 44.8 44.1 37.8 38.9 40

Average Score Average 30 20 14.0 6.8 10 0 Ideological Activism Partisanship Independence

Collegial Average

Collegial judges are those that exhibit the strongest adherence to the norm of consensus in the appellate courts.116 These judges, on average, exhibit scores below the mean in every category, as seen in Figure 8. And their regulation of the district courts is relatively modest. Because their overall profile might indicate a preference for less disagreement and conflict among federal judges, they represent ideal colleagues. This group includes the highest number of judges of any of the nine types.

116 See generally Joshua B. Fischman, Decision-Making Under a Norm of Consensus: A Structural Analysis of Three-Judge Panels (Jan. 4, 2008) (unpublished manuscript), available at http://papers.ssrn. com/sol3/papers.cfm?abstract_id=912299 (contending that the high rate of unanimity at the federal appellate level is indicative of a strong norm of consensus).

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FIGURE 9: AVERAGE INCREMENTALIST JUDGE SCORES

100 90 80 70 60 51.3 53.1 50 44.8 44.8 44.1 40 32.8

Average Score Average 30 20 12.0 14.0 10 0 Ideological Activism Partisanship Independence

Incrementalist Average

Incrementalist judges are those that do not often fight ideological conflicts at the appellate level, but do push the district courts in a slightly partisan direction. These judges, whose scores are in Figure 9, typically have elevated Partisanship Scores and Activism, Ideological, and Independence Scores that are slightly lower than or at the mean. Incrementalists are not true ideological or partisan moderates, but their overall profile indicates a relatively restrained stance in ideological disputes. Their lower Independence Scores indicate that they do not pursue conflict. Unlike Regulating judges, Incrementalist judges are not typically as partisan and are far less activist. Whatever goals (strategic, legal, or otherwise) these judges have, they apparently approach them from the perspective of an Incrementalist, seeking evolution and not revolution.

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FIGURE 10: AVERAGE MINIMALIST JUDGE SCORES

100 90 80 70 60 51.3 51.7 44.8 44.1 50 38.7 40

Average Score Average 30 23.6 20 10.3 14.0 10 0 Ideological Activism Partisanship Independence

Minimalist Average

Judicial Minimalists are most deferential to the judgments of the district courts. Judicial minimalism is the one style discussed in this Article that has received significant theoretical attention by scholars.117 Although it has been taken to mean different things in varied contexts, the essential idea of minimalism is that judges act in a restrained manner.118 In this study, as demonstrated in Figure 10, such judges have the lowest Activism Scores, slightly higher Independence Scores, and close-to-average Ideological and Partisanship Scores. The behavior of Minimalists shows the strongest adherence to norms of deference in place of partisanship and ideology. Because most judges are far more aggressive in exercising judicial power, the Minimalists have higher Independence Scores, indicating a higher rate of disagreements in judicial perspectives with other judges at the appellate level.

117 See, e.g., CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT 5–6 (1999). 118 Id.

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FIGURE 11: AVERAGE ERROR CORRECTING JUDGE SCORES

100 90 80 68.3 70 60 51.3 50 44.8 43.4 44.1 40 32.8

Average Score Average 30 20 14.0 7.9 10 0 Ideological Activism Partisanship Independence

Error Correcting Average

Error Correctors are judges who seem to be primarily concerned with fixing “wrong” decisions by the district court judges without a partisan or ideological bent. Figure 11 outlines the scores of Error Correctors, who exhibit higher levels of Activism than average, slightly lower Partisanship and Ideology levels, and Independence measures close to the mean. As a group, they are less likely to defer to district judges but generally more likely to apply deferential rules in a party-neutral manner. They are similar to Regulating judges, but are significantly less partisan in reviewing district court judges. The judicial types for each judge are listed in Appendix C at the conclusion of this Article. Discussions of the style types of high-profile judges are reviewed in Part III.B. However, before reviewing the application of the typology to individual judges, it is helpful to consider possible limitations to the judicial style typology and underlying data.

C. Limitations There are several limitations to the inferences drawn in this Article. Notably, all of the data studied in this Article were from 2008 opinions. As a result, the labels given to judges in this Article are only representative of that one year. Studies in other areas have shown the potential for drift in judicial behavior over time, which is not accounted for by the limited time frame used here.119 Further, the population of 178 judges examined here may not be representative of judges from other time periods. The studied group was largely composed of nominees of Presidents Bill Clinton and

119 See generally Lee Epstein et al., Ideological Drift Among Supreme Court Justices: Who, When, and How Important?, 101 NW. U. L. REV. 1483 (2007) (finding ideological drifts among some Supreme Court Justices over time).

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George W. Bush. And the nominees from older Presidents were not necessarily a representative sample of all nominees by those Presidents because retirements are not random events. Particularly in this era of enormous political fights about nominations to the courts of appeals, it is unclear if any results here can be generalized into eras when the nomination process was different. Lastly, even assuming that the nine identified styles account for the extent of modern judge types, there is no reason to believe that those styles encapsulate the possible approaches of judges used throughout time.

D. Comparison to Public Accounts of Judges To determine if a measure is statistically valid, it needs to be evaluated against some other assessment.120 Because there is neither another judicial style typology nor a quantitative behavioral assessment of all of the 178 judges studied, qualitative comparison was the only available means of evaluating the validity of the typology in assessing judicial behavior. However, there is limited public information about the large majority of the 178 judges studied. As a result, only a high-profile subset of judges could be used to determine model validity. In the dataset, there are at least nine judges that might be deemed to have sufficient notoriety based upon media attention. The judges listed in Figure 12 either have “celebrity” status as public intellectuals or judicial lightning rods, have been mentioned as possible Supreme Court Justices, or, in the case of Justice Sonia Sotomayor, have actually been appointed to the Supreme Court. Figure 12 includes a list of those judges, their four component behavioral scores, and

120 “A measure is facially valid if it is consistent with prior evidence, including all quantitative, qualitative, and even informal impressionistic evidence.” Epstein & King, supra note 77, at 89. Validity is determined by whether the measurements used in an empirical study reflect the concept(s) measured. Id. at 87. Lee Epstein and Gary King considered three possible ways to view validity: facial validity, unbiasedness, and efficiency. Id. at 89. Although establishing validity in each of those categories is not strictly required, id. (“[N]o one of these is always necessary, and together they are not always sufficient, even though together they are often helpful in understanding when a measure is more or less valid.”), this Article considers each type in turn. Because the validity of the four underlying judicial traits has been considered in prior scholarship, the validity discussion in this Article focuses solely on the nine judicial types. If there were validity problems with the underlying measures, however, those would certainly affect the validity of the results of this further study. The metric method is unbiased if it produces results that are consistent through repetitive analysis. Id. at 92. This is an area where the methodology of this study excels. Reliance on computer coding and quantitative analysis and the exclusion of judges with insufficient population sizes provides a stable, unbiased measurement methodology. There is some potential for bias in the decision as to the appropriate number of judicial types, but that is inevitable in the use of cluster analysis. The last validity concern is “to choose the [study design] with the minimum variance.” Id. at 95. Treating the judges studied in 2008 as the population instead of a sample of a larger body of cases diminishes the level of variance in the study. Further, the data were analyzed with frequentist statistics, which have no variance outside of a sampling structure.

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their resultant judicial style type (including appointing President’s political party and ideological assessment based upon the Ideology Score):

FIGURE 12: NOTABLE JUDGES

Judge Ideo. Act. Part. Ind. Overall Type Trailblazing Danny J. Boggs 40.1 20.7 34.7 64.0 Conservative Republican Incrementalist Frank H. Easterbrook 9.8 50.0 57.8 43.6 Moderate Republican Minimalist Michael W. McConnell -3.2 29.4 45.1 58.5 Moderate Republican Incrementalist Richard A. Posner 18.7 49.0 44.9 36.4 Moderate Republican Steadfast Stephen R. Reinhardt -20.4 61.2 24.6 72.4 Liberal Democrat Regulating Sonia Sotomayor -17.3 39.3 57.2 48.1 Moderate Democrat Error Correcting Sidney R. Thomas -2.9 61.7 32.4 57.0 Moderate Democrat Collegial J. Harvie Wilkinson III 7.0 49.8 37.5 39.0 Moderate Republican Incrementalist Diane P. Wood -28.0 48.9 53.5 26.5 Liberal Democrat

Among these judges, many have a good impressionistic fit with their typology categorization. For example, Judge Danny Boggs, embodying the traits of a Trailblazing conservative, has been at the forefront of many of the judicial battles on the Sixth Circuit.121 As would be expected from a Trailblazing judge, he has had many contentious battles with his

121 See David Hawpe, Clearing the Air on Sixth Circuit Judges’ Junkets and Jousts, COURIER- JOURNAL, Oct. 1, 2006, at H2; Adam Liptak, Order Lacking on a Court: U.S. Appellate Judges in Cincinnati Spar in Public, N.Y. TIMES, Aug. 12, 2003, at A10.

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107:1757 (2013) A Typology of Judging Styles ideological opponents.122 Dissenting in a case concerning whether a stay of execution should be granted, Judge Boggs went so far as to write: “[A] majority of the active members of this court would grant a stay based on a hot dog menu.”123 Judge Frank Easterbrook, an Incrementalist moderate Republican according to the typology, has long been recognized as a strong conservative voice on the Seventh Circuit.124 However, Judge Easterbrook has also been an open opponent of judicial activism, and the designation as an Incrementalist seems appropriate.125 Further, Judge Easterbrook’s reputation as a thoughtful intellectual is more consistent with a pragmatic, incremental approach than it is with a political warrior.126 Judge Easterbrook’s conservative colleague, Judge Richard Posner, is certainly the most well-known court of appeals judge in America. The judicial typology categorizes Judge Posner in the same grouping as Judge Easterbrook, an Incrementalist moderate Republican. Despite their occasional publicized disagreements,127 both Judges Posner and Easterbrook are known as prominent conservative judges.128 The Incrementalist label might not fully capture Judge Posner’s idiosyncratic approach to judging, but it does seem similar to his self-described pragmatism, which rejects grand theories in favor of real-world reasonableness.129 Judge Diane Wood is the third of the notable nine judges who is on the Seventh Circuit and is categorized as an Incrementalist liberal. That label coincides well with the media coverage at the time President Obama considered her for the Supreme Court.130 There is little dispute that Judge Wood is liberal.131 Judge Wood has embodied Incrementalist traits in regularly bridging the gap with conservative judges on the Seventh Circuit and gaining respect as a thoughtful, careful jurist.132 Judge Michael McConnell was a law professor, served as a federal judge on the Tenth Circuit during the study period, and is now a law school professor once again. The typology categorizes Judge McConnell as a

122 Hawpe, supra note 121; Liptak, supra note 121. 123 In re John W. Byrd, Jr., 269 F.3d 578, 582 (6th Cir. 2001) (Boggs, J., dissenting). 124 See James B. Stewart, In Obama’s Victory, a Loss for Congress, N.Y. TIMES, June 30, 2012, at B1. 125 See Frank H. Easterbrook, Do Liberals and Conservatives Differ in Judicial Activism?, 73 U. COLO. L. REV. 1401, 1401, 1405, 1409–10 (2002). 126 See A Good Decision on Motor Voter, WASH. POST, June 7, 1995, at A20. 127 See, e.g., Ameet Sachdev, Blagojevich Jury Names Create Rift Among Judges, CHI. TRIB., July 16, 2010, at C26. 128 See Peter Slevin, Wood’s Critics Focus on Abortion, WASH. POST, Apr. 19, 2010, at A5. 129 RICHARD A. POSNER, LAW, PRAGMATISM, AND DEMOCRACY 59–60, 73 (2003). 130 See, e.g., Cross-Court Shot, INVESTOR’S BUS. DAILY, Apr. 29, 2010, at A10. 131 See Dana Milbank, Obama Picks a Nominee, Not a Fight, WASH. POST, May 11, 2010, at A2. 132 See Cross-Court Shot, supra note 130.

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Minimalist moderate. Judge McConnell has been a vocal supporter of a philosophy of judicial restraint, which is consistent with a Minimalist approach that more often defers to the judgments of district courts.133 Although Judge McConnell has strong conservative credentials,134 he has found himself criticized and praised by both the right and left, belying a moderate ideology.135 It is unclear if his clerkship for Justice William Brennan is indicative of any liberal leanings,136 but his criticism of the Supreme Court’s decision in Bush v. Gore137 is certainly notable in indicating a more moderate ideology.138 Further, his nomination to the bench was strongly supported by liberal academics and liberal politicians such as Chuck Schumer who felt his intellectual honesty would make him less ideological on the bench.139 Judge J. Harvie Wilkinson III of the Fourth Circuit is designated as a Collegial moderate. Judge Wilkinson has long championed collegiality among judges and perhaps best embodies the label Collegial.140 Although some might be surprised at the “moderate” categorization, his rebuke of what he saw as conservative judicial activism in the Supreme Court’s District of Columbia v. Heller141 opinion gives strong credence to the designation.142 Indeed, Judge Wilkinson published a law review article criticizing the Supreme Court’s conservatives that illustrated the ideological distance in judging between Judge Wilkinson and the Supreme Court’s conservatives.143 Justice (then Judge) Sotomayor is categorized as a Regulating moderate. Because she was a Supreme Court nominee, the public record concerning her judging qualities is filled with hyperbolic vitriol144 and

133 David Newman & Emily Bazelon, The Supreme Court Shortlist, SLATE (July 1, 2005, 11:34 AM), http://www.slate.com/articles/news_and_politics/assessment/2005/06/the_supreme_court_ shortlist.html. 134 Alicia Caldwell & John Aloysius Farrell, Appeals Judge Has Appeal—to Some, DENVER POST, June 26, 2005, at 1A; Robert Gehrke, High Court U. Scholar’s Next Stop?, SALT LAKE TRIB., Feb. 28, 2005, at A1. 135 Vacancy on the Supreme Court, L.A. TIMES, July 2, 2005, at A27. 136 Brian Mitchell, Supreme Court Seat Back Up for Grabs as Miers Bows Out, INVESTOR’S BUS. DAILY, Oct. 28, 2005, at A1. 137 531 U.S. 98 (2000). 138 Replacement: Who’s Next?, NAT’L J. (Oct. 28, 2005), http://www.nationaljournal.com/member/ hotline/replacement-who-39-s-next--20051028. 139 See supra note 134. 140 J. Harvie Wilkinson III, The Drawbacks of Growth in the Federal Judiciary, 43 EMORY L.J. 1147, 1173–74 (1994). 141 554 U.S. 570 (2008). 142 J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 VA. L. REV. 253, 274–75, 322 (2009). 143 See id. 144 See, e.g., Tom LoBianco, Lawyers Tag Sotomayor as “Terror on the Bench,” WASH. TIMES, May 29–30, 2009, at A1.

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107:1757 (2013) A Typology of Judging Styles praise.145 Nonetheless, her background (having originally been nominated to the district court by President George H.W. Bush) and nonpartisan assessments of her record on the bench indicate moderation.146 Her designation as a Regulating judge befits a judge who has at least some reasonable partisan applications of the law that might have provided the basis for nominating her to the Supreme Court. Judge Stephen R. Reinhardt is categorized as a Steadfast liberal. Judge Reinhardt’s classification fits perfectly with his public reputation as an iconoclast liberal voice on the Ninth Circuit.147 His reputation as a liberal is not in doubt as notable commentators have speculated that he is the most liberal judge on the Ninth Circuit, which has a reputation for liberal decisions.148 Judge Reinhardt is regularly described as a liberal activist by conservative critics, which aligns with both his categorization as Steadfast and as a liberal.149 Indeed, the conservative Family Research Council awarded Judge Reinhardt its mocking Lifetime Achievement Court Jester Award due to his alleged liberal judicial activism.150 Judge Reinhardt also finds himself at the center of Ninth Circuit controversies befitting the lightning rod nature of a Steadfast judge.151 Judge Sidney R. Thomas, another Ninth Circuit judge, was a relative unknown until some progressive groups championed him as a potential nominee to the Supreme Court.152 This recognition seems to be an odd fit with his type, Error Correcting moderate. However, many commentators noted that there was nothing particularly ideologically liberal in Judge Thomas’s record other than a couple of timely high-profile decisions that caught the attention of progressive advocacy groups.153 Overall, his reputation was of a moderate decisionmaker who built bridges between conservatives and liberals, which is consistent with his designation as a moderate.154 What little information has been published regarding his treatment of district court decisions indicates that he is not afraid to be blunt and harsh in his rulings based upon his views of the specific facts in

145 Robert Barnes, Battle Lines Are Drawn on Sotomayor Nomination, WASH. POST, May 28, 2009, at A1. 146 See Savage, supra note 34. 147 David G. Savage, Did Victim’s Photo Prejudice a Jury?: Another Ruling by the Liberal- Leaning 9th Circuit Comes Under Supreme Court Review, L.A. TIMES, Sept. 18, 2006, at A1. 148 See Adam Liptak, A Slow Stroll to the Supreme Court, N.Y. TIMES, Feb. 21, 2012, at A14. 149 See Joyce Howard Price, 9th Circuit’s Rulings Frequently Overturned, WASH. TIMES, June 28, 2002, at A16. 150 Greg Pierce, Inside Politics: Court Jester Awards, WASH. TIMES, June 24, 1998, at A8. 151 See Howard Mintz, Prop. 8 Appeal Panel Has Mix of Ideologies, SAN JOSE MERCURY NEWS, Nov. 30, 2010, at 1. 152 John Schwartz, Long Shot for Court Has Reputation for Compassion and Persuasion, N.Y. TIMES, May 6, 2010, at A17. 153 Id. 154 Id.

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the case.155 That assessment fits well with his categorization as an Error Corrector. Overall, the categorizations represent fairly reasonable assessments of the notable judges based upon qualitative public impressions of them. There are certain designations with which some will surely disagree. Nonetheless, that is, in part, the value of the typology system. If the categories merely confirmed what was already known, it would not add as much to our collective understanding of decisionmaking. That the categorizations provide an acceptable level of agreement with qualitative evidence for the highest profile judges provides facial validity for the study.

IV. PREDICTING JUDICIAL STYLES A logical question that follows from the identification of separate judging styles is whether any background or demographic characteristics of judges correlate with their styles. For example, a judge who attended a particular law school, served first as a district judge, or was from a certain circuit might exhibit different decisionmaking behavior in a statistically significant manner. Because the 178 judges spread across nine judicial styles (an average of approximately 19.9 judges per style) generated small population sizes, regression analyses were expected to find little or no evidence to reject the null hypothesis. And because the distribution among the categories was highly uneven, future research based upon larger populations of judges might identify more correlations. Nonetheless, multinomial logistic regressions demonstrated that some background traits are correlated with judicial styles.156

A. Data for Background Factor Testing In addition to the Case Database, I constructed a separate database (Judge Database) that included biographical and other data about individual judges. In the Judge Database, judges were coded for, among other variables: appointing President, presidential party, age at the time of appointment, age in 2008, composition of the Senate at the time of appointment, gender, race, law school attended, prior work experience, whether the President and majority of the Senate were of the same party at the time of appointment, and whether the judge took senior status during or before 2008. The Judge Database included data for all federal appellate judges that served on panels as well as district judges who had opinions

155 Id. 156 Multinomial regression is used when an analyzed dependent variable contains multiple categories that are not ordered in any particular fashion (in this case, the judging styles). Logistic regression is used when an analyzed independent variable is categorical (e.g., circuit on which the judge sat). VANI K. BOROOAH, LOGIT AND PROBIT: ORDERED AND MULTINOMIAL MODELS (2002).

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107:1757 (2013) A Typology of Judging Styles reviewed in the Case Database. In all, background trait information was accumulated for over 1500 federal judges. Data in the Judge Database were entirely human coded from publicly available information about the judges studied.

B. Law School Attended There has been little or no empirical study of whether a judge’s or lawyer’s professional decisions are correlated with the law school that she attended. However, the data in this study show two significant correlations between a judge’s law school and her judicial type. First, the ranking of the law school attended (based upon the 2008 U.S. News and World Report law school rankings) is correlated with which judicial type a judge belongs to. Figure 13 below indicates the average law school rank for judges in each category.

FIGURE 13: AVERAGE LAW SCHOOL RANKING BY JUDGE TYPE (p = 0.0369)

Consensus Building 42 Error Correcting 38 Collegial 35 Regulating 29 Incrementalist 29 Minimalist 20 Stalwart 18 Trailblazing 7 Steadfast 4

0 5 10 15 20 25 30 35 40 45 2008 U.S. News & World Report Law School Rankings

Perhaps most interesting is that the judicial styles most strongly associated with contentiousness (Steadfast, Trailblazing, and Stalwart), on average, attended law schools that were much higher ranked (meaning they had a lower numerical ranking). In contrast, the types that epitomized collegiality (Consensus Building and Collegial) attended law schools with the lowest average rankings. In total, judges of the most contentious types (Steadfast, Stalwart, and Trailblazing) attended law schools ranked nearly thirty places higher than those judges associated with collaborative styles (Collegial and Consensus Building). Although these results do not mean that a law graduate from Yale or Harvard is destined to be a Trailblazer or

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Steadfast judge, the data support some connection between judicial style and law school attended.157 Judicial types also correlate to whether the law school attended was public or private.158 Figure 14 shows the breakdown of public and private law school graduates among the different judicial types.

FIGURE 14: PRIVATE VERSUS PUBLIC LAW SCHOOL ATTENDANCE AND JUDICIAL STYLE (p = 0.0319)

100% 0 90% 7 80% 1 12 20 8 70% 3 4 19 60% 50% 5 40% 25 30% 2 22 22 8 20% 2 3 14 Percentage of Judges Percentage 10% 0%

Private Public

A few categories stand out as having unusual distributions of private and public law school graduates. All five Steadfast judges attended private schools. Over 78% of Incrementalist judges also graduated from private law schools. However, Trailblazing, Regulating, and Consensus Building judges more often graduated from public law schools. Certainly, there is overlap between the correlations identified with law school ranking and the type of law school. For example, the average law school ranking for Steadfast judges was approximately fourth overall. Because private law schools dominate the top of the rankings, it is unsurprising that Steadfast judges all attended private schools. The basis for these correlations is unclear without further exploration, but the results support the proposition that where a judge attended law school is not just an insignificant biographical note in understanding their decisionmaking.

157 p = 0.0369; pseudo R2 = 0.0243. 158 p = 0.0319; pseudo R2 = 0.0249.

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C. Appointing President’s Political Party Although ideology is an important component of the judicial types, only the absolute value of the Ideology Score was used (yielding the Ideological Score) to create the judicial style typology. This means that strong conservatives and liberals are often sorted into the same category. As a result, it does not necessarily follow that the party of the appointing President would correlate with the judicial type of the judge. Nonetheless, multinomial regression analysis of the data demonstrates such a correlation.159 Figure 15 below shows the breakdown of which appointing President’s party nominated the judges in each of the styles.

FIGURE 15: JUDGE TYPE BY APPOINTING PRESIDENT’S PARTY (p = 0.0075)

100% 0 90% 1 80% 15 70% 23 27 11 60% 4 5 25 50% 5 40% 2 30% 19 20% 15 Percentage of Judges Percentage 11 5 10% 1 2 7 0%

Democrat Republican

Certain groups, such as Steadfast judges, demonstrate an ideological makeup outside of the normal distribution. Steadfast judges’ ranks are drawn exclusively from those appointed by Democratic Presidents. In contrast, over 78% of Incrementalist and 80% of Trailblazing judges were appointed by Republican Presidents. It is difficult to know if some of these trends would hold with a larger population of judges, but regression does show a statistically significant relationship between the types and judges’ appointing party. Notably, perhaps due to population sizes in some subgroups, the specific appointing President is not correlated with the type of judge.160 The domination of the Steadfast category might follow from the fact that appointees of Democratic Presidents are the minority in the courts of

159 p = 0.0075; pseudo R2 = 0.0309. 160 p = 0.6084.

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appeals.161 Such judges might find themselves outside the mainstream perspectives embodied in existing law shaped by a Republican-dominated judiciary and become Steadfast against such political worldviews. Similarly, a majority party would necessarily contain more Incrementalists and Trailblazers. Because the majority party could have shaped the law in a worldview largely consistent with that party, many judges would not meddle with reshaping appellate law and instead keep the district courts from straying too far outside of the dominant political perspective in the appellate world. However, the majority party will always have some members who want to push the law even further in a particular ideological direction. These judges naturally fall within the Trailblazing category.

D. Senior Status A third background trait that was correlated with the judicial categorization system was whether the judge had taken senior status at any time in or prior to 2008.162 Figure 16 below shows the distribution of judges who had taken senior status among the nine judicial styles.

FIGURE 16: SENIOR STATUS AND JUDGING STYLE (p = 0.0076)

100% 0 90% 80% 70% 10 60% 25 26 6 38 26 50% 5 3 5 40% 30% 20% 6 Percentage of Judges Percentage 10% 8 8 1 4 6 0% 0 0

Senior Not Senior

Self-selection offered one possible explanation for why certain judicial styles were overrepresented among judges who had taken senior status. In order for a senior judge to appear in this study, he must have decided not to retire and to hear enough cases to qualify. Because senior judges can

161 See infra App. C. 162 p = 0.0076; pseudo R2 = 0.0309.

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107:1757 (2013) A Typology of Judging Styles normally retire and receive the same pay as they would by continuing to work, many of those that stayed on the bench were clearly not motivated by financial gain.163 Further, to hear a docket equivalent in size to active status judges was a decision made by the individual judge. It might follow, then, that the three Stalwart judges were understandably all senior status judges who were firmly committed to strong ideological and partisan positions.164 However, any theoretically grounded explanation for the correlation in this area warrants further investigation.

E. Circuit The last background trait associated with judge type was the circuit on which the judge was appointed.165 Appendix C includes charts illustrating the distribution of judge types among each studied circuit. However, it is worth noting one prime example here. The Sixth Circuit, as illustrated in Figure 17 below, has been marked by a much higher level of ideological division than the other courts of appeals.166

FIGURE 17: AVERAGE IDEOLOGICAL VARIANCE BY CIRCUIT (p < 0.0001)

Eleventh (14) 5.6 Tenth (16) 9.2 Ninth (36) 17.2 Eighth (16) 19.3 Seventh (14) 10.3 Sixth (16) 36.1 Fifth (20) 5.3 Fourth (12) 10.5 Third (13) Circuit (Qualified Judges) (Qualified Circuit 8.0 Second (15) 8.4 First (6) 7.3 0.0 5.0 10.0 15.0 20.0 25.0 30.0 35.0 40.0 Average Ideology Score Variance

As measured by the Ideology Scores of the 178 judges in the sample, an average Sixth Circuit judge had an Ideology Score that was 36.1 points

163 Stephen J. Choi, G. Mitu Gulati & Eric A. Posner, Are Judges Overpaid? A Skeptical Response to the Judicial Salary Debate, 1 J. LEGAL ANALYSIS 47, 57–58 (2009). 164 Among senior status judges, the date at which they took senior status was uncorrelated with judge type (p = 0.0722). 165 p < 0.0001; pseudo R2 = 0.2338. 166 This chart was created using the 2008 Case Database, not the 2009 Testing Database.

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from the mean for that circuit. The next most divided circuit was the Eighth, with an average variation of 19.3 points. Eight of the eleven circuits studied had average variations less than 11 points. Needless to say, the Sixth Circuit was an outlier among the circuits in terms of ideological divide. Such statistical findings were further supported by media and scholarly coverage of the opinions issued from that court.167 Based upon such sharp ideological differences, it was expected that the Sixth Circuit would have a disproportionate amount of the judging types associated with high ideology and independence. Figure 18 below includes a list of all of the Sixth Circuit judges in the 178-judge sample and their identified type (in order of judge type).

FIGURE 18: SIXTH CIRCUIT JUDGING TYPES

Judge Overall Type Eric L. Clay Trailblazing Liberal Democrat Danny J. Boggs Trailblazing Conservative Republican Richard A. Griffin Trailblazing Conservative Republican John M. Rogers Trailblazing Conservative Republican David W. McKeague Trailblazing Conservative Republican Gilbert S. Merritt, Jr. Stalwart Liberal Democrat Jeffrey S. Sutton Regulating Moderate Republican Deborah L. Cook Regulating Conservative Republican Eugene E. Siler, Jr. Regulating Conservative Republican Alice M. Batchelder Regulating Conservative Republican Karen N. Moore Steadfast Liberal Democrat Ransey G. Cole, Jr. Steadfast Moderate Democrat Martha C. Daughtrey Steadfast Moderate Democrat Ronald L. Gilman Steadfast Conservative Democrat Julia S. Gibbons Minimalist Moderate Republican Boyce F. Martin, Jr. Error Correcting Liberal Democrat

The Sixth Circuit had sixteen total judges with sufficient population sizes. Among those, there were five Trailblazing, one Stalwart, and four Steadfast judges. Thus, ten of the judges were of the types most prone to conflict. In the other ten circuits, there were only nineteen more judges of those three types. It is unclear if the judicial types in the Sixth Circuit are a partial product or cause of the ongoing situation there, but there is evidently a strong correlation exhibited within that Circuit.

167 See, e.g., Dan Horn, 6th Circuit’s Infighting Gets Personal, CINCINNATI ENQUIRER, Oct. 16, 2008, at A1.

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CONCLUSION Judges are like any other group of people—they differ in their approaches at work, can be assessed in a multitude of ways, and do not perform in isolation. This study highlights the shortcomings of existing studies and models of judicial behavior that reject those basic ideas. The nine judge categories identified in this Article illustrate that our vocabulary and empirical understanding of judicial decisionmaking has grown stagnant. Instead of merely referring to and studying judges as “activist” or “conservative,” there is a need to recognize that such simple categorizations are woefully inadequate. There is strong empirical evidence that a complete account of judicial decisionmaking cannot rely on such simplistic assumptions. By limiting the scope of our inquiry and methods, we have missed tremendous opportunities to provide valuable quantitative information about some of the most important actors in our constitutional system. This Article is not intended to provide final answers to any of the basic questions inherent in understanding and describing judicial decisionmaking. Indeed, perhaps the most prominent question that follows from this work has not been addressed at all: how does this (or any) typological approach compare to other theories that have been proffered? Because of the enormity of and difficulty with quantitatively answering that query, I decided to address that issue in future work. Nonetheless, the proof of the concept of judicial typologies present in this work points to entirely new avenues for research. For example, does the presence of a Consensus Builder on a panel offset ideological and stylistic differences among copanelists to increase unanimity? Does changing the stylistic makeup of a circuit have a significant effect on how often that circuit reverses district court judgments or registers a dissent? Are certain judicial styles related to higher rates of a particular substantive outcome, such as a Steadfast judge being more apt to find for a criminal defendant? The typological approach described in this Article warrants a reimagining of empirical scholarship regarding judicial decisionmaking and opens lines of inquiry that were previously impossible. Further, the typological approach provides a data-based outsider perspective on the differing ways judicial decisions are reached so that, as Judge Richard Posner commented, we do not rely on the metaphorical cats (judges) to tell us about feline psychology (judicial decisionmaking of individual judges).168 Ultimately, the typology described herein provides valuable data-based information to scholars examining judicial behavior, politicians engaged in judicial nomination debates, and a public increasingly concerned about the role of judges in American society.

168 POSNER, supra note 56, at 2 (“Biographies are more reliable than autobiographies, and cats are not consulted on the principles of feline psychology.”).

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APPENDIX A Common Adjustment Methodology As noted in Part II.B, there were several common adjustments made to the raw scores to incorporate specific factors that might explain portions of the underlying variance measured by the scores. Four common adjustments were for a judge’s circuit (applied to Ideology, Activism, and Partisanship Scores), super-panel effects (applied to Ideology, Activism, and Partisanship Scores), case issue mix (applied to all four measures), and common scaling (applied to all four measures). The circuit adjustment relied on two basic premises: (1) a variety of differences between the circuits might explain variance in behavior and (2) the behavior of judges traveling between circuits would provide a means to calculate the amount of variance that was due to circuit differences. The first premise is likely noncontroversial. The adjustments made to the Activism and Partisanship Scores were minor because of limited differences in behavior observed by traveling judges. However, the second contention concerning senior status judges sitting on panels in different circuits warrants further explanation. There were 26 senior status judges on panels that issued opinions in 2008. Combined, they accounted for votes on 2482 panels in the Case Database. Because each of those panels afforded up to three possible interactions with other judges (two for copanelists and one for the district judge), there were nearly 7500 data points derived from these judges. The study assumed that senior judges’ traits would remain constant in any circuit where they sat. So, when Judge Pasco Bowman heard cases in the Eighth and Eleventh Circuits, the study assumed he would have the same activism, ideology, and partisanship traits. Thus, any change in his behavior between the two circuits would be due to unidentified differences in the circuits. Because the distribution of the traveling votes was not evenly spread among the circuits, the collective scores of the 26 judges were aggregated and weighted according to how many votes each judge issued in a particular circuit. Doing that allowed an expected traveling judge value to be computed for each circuit using this formula169: Expected Ideology Score = (Judge A votes in Circuit X * Judge A Ideology Score + Judge B votes in Circuit X * Judge B Ideology Score + Judge C votes in Circuit X * Judge C Ideology Score) / (Judge A votes in Circuit X + Judge B votes in Circuit X + Judge C votes in Circuit X) The actual scores were then computed collectively (as one hypothetical traveling judge) for all of the traveling judges within a circuit.170 The

169 Ideology is used in the example, but the principle is the same for each score. 170 The collective treatment of traveling judges was necessary because individual judges often had too few votes in particular circuits. As a result, combining the scores was the only means to ensure that

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107:1757 (2013) A Typology of Judging Styles difference between the expected and actual scores formed the basis for the circuit adjustment. The raw adjustment number was then divided by the number of traveling votes in the circuit so that the circuit differential could be determined on a per-vote basis. Then each judge within the circuit would have the circuit adjustment applied based upon the number of votes he or she issued.171 Super-panel effects were the expected variance in voting caused by the political background of copanelists and district judges. Unlike the results in other panel effects studies, the integration of the district judge created new values that warranted different adjustments. The data suggested that the party of the appointing President on the super-panel affected individual judges’ decisions to dissent and reverse. Figures 19 and 20 below indicate the magnitude of those differences based upon the results from the Case Database.

FIGURE 19: PANEL DISAGREEMENT RATE BY APPOINTING PRESIDENT’S PARTY OF COPANELISTS AND DISTRICT JUDGE

1.80% 1.60% 1.53% 1.40% 1.22% 1.16% 1.20% 1.00% 0.80% 0.60% 0.40% 0.20% Disagreement Rate with Copanelists with Rate Disagreement 0.00% All Same Party Panel Same, District Split Party Panel Different Party of Appointing President of Copanelists and District Judge

the majority of the traveling judge information was not discounted entirely. If more data were available, a more complex adjustment system could be utilized. 171 Prior versions of the Ideology and Activism Scores were computed using circuit adjustments that were made on a per-judge basis. See Yung, Activism, supra note 17; Yung, Ideology, supra note 17. The switch to a per-vote basis explains a substantial portion of the changes in the scores used in this study.

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FIGURE 20: REVERSAL RATE BY APPOINTING PRESIDENT’S PARTY OF COPANELISTS AND DISTRICT JUDGE

25.5% 24.9% 25.0% 24.5% 24.0% 23.5% 23.0%

22.5% 22.1% 22.0% 22.0% 21.5% 21.0% Disagreement Rate with Copanelists with Rate Disagreement 20.5% All Same Party Panel Same, District Split Party Panel Different Party of Appointing President of Copanelists and District Judge

Consequently, totals were tallied for each judge based upon the six possible political configurations of a judge’s two copanelists and the district court judge being reviewed. Those potential arrangements were: (1) two Republican copanelists, Republican district judge (RR-R); (2) two Republican copanelists, Democratic district judge (RR-D); (3) one Republican and one Democratic copanelist, Republican district judge (RD- R); (4) one Republican and one Democratic copanelist, Democrat district judge (RD-D); (5) two Democratic copanelists, Republican district judge (DD-R); and (6) two Democratic copanelists, Democratic district judge (DD-D). Based upon the data in Figures 19 and 20, it was determined how much variance in the judge scores could be explained by sitting on panels with the above six configurations. For example, if a judge sat on thirty RR- R panels and ten DD-D panels, it was assumed that the ten DD-D panels would cancel out the effects of ten RR-R panels. However, the remaining twenty RR-R panels would pull the studied judge in a conservative direction and lower his reversal rate. As a result, the judge’s respective scores were adjusted based upon the expected magnitudes of those effects. The courts of appeals studied here reviewed different sets of cases from different sets of district judges based upon geography.172 Within each

172 With the exception of the Federal Circuit and the Court of Appeals for the District of Columbia, which were not included in this study, the remaining circuits exclusively have geographic and not subject-matter based jurisdiction. See Paul R. Michel, Foreword, Assuring Consistency and Uniformity of Precedent and Legal Doctrine in the Areas of Subject Matter Jurisdiction Entrusted Exclusively to the U.S. Court of Appeals for the Federal Circuit: A View from the Top, 58 AM. U. L. REV. 699, 702 (2009).

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107:1757 (2013) A Typology of Judging Styles circuit, each judge was randomly assigned to hear cases, usually on panels of three judges. As a result, any given judge studied could have had a vastly different mix of issues to rule upon than the average judge. Consequently, an adjustment was made based on differences in judges’ dockets in order to decrease the degree to which any unobserved variables would affect the results.173 In the Case Database, one particular distinction in case types proved significant in both dissent and reversal rates. In criminal cases, judges on panels agreed 99.1% of the time and affirmed the judgment of the lower court in 83.2% of cases. In contrast, the panel disagreement rate in civil cases was 98.5% and the reversal rate was 73.3%. There were also intersecting differences when deferential and nondeferential standards of review were applied in civil and criminal cases. As a result, each judge’s criminal and civil cases were grouped and had scores calculated separately. When sample sizes for individual subcategories were too low (i.e., deferential standard criminal cases), then the scores were interpolated based upon expected and actual scores with that judge’s case mix. The criminal and civil scores were then weighted according to the distribution of the average judge. The last common adjustment was much simpler. Each score was adjusted to a similar scale. There were 178 studied judges who had at least 200 interactions with other judges. Scaling was done so that those 178 judges would define the extent of the scales. The Activism, Partisanship, and Independence Scores were scaled from 0 to 100 and the Ideology Score was scaled from -100 to 100. In the former case, this was done by moving the lowest observed raw score to the 0 and then multiplying all of the values by a constant needed for the highest score to reach 100. In the latter case (Ideology), the multiplier chosen was the value that would either move the highest score to 100 or lowest score to 100. There was no reason to force symmetry by making one judge have a score of -100 and another 100.

173 See David C. Vladeck, Keeping Score: The Utility of Empirical Measurements in Judicial Selection, 32 FLA. ST. U. L. REV. 1415, 1433–34 (2005) (discussing, in the context of the Choi and Gulati study, the need to account for differences among circuit caseloads in creating empirical measures).

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APPENDIX B Component Scores of Judges The following table includes Ideological, Activism, Partisanship, and Independence Scores for judges with at least 200 interactions with other judges.

Judge Cir. N174 Id. Act. Part. Ind. Ambro, Thomas L. 3 398 4.4 70.4 42.1 48.0 Anderson, Robert L., III 11 1007 0.4 47.0 43.1 35.4 Anderson, Stephen H. 10 332 7.0 39.8 67.5 19.7 Baldock, Bobby R. 10 352 5.1 44.8 45.0 53.9 Barkett, Rosemary 11 949 2.5 56.5 45.4 41.7 Barksdale, Rhesa H. 5 678 20.4 54.1 58.1 31.7 Barry, Maryanne T. 3 387 0.5 73.2 25.7 31.1 Batchelder, Alice M. 6 305 54.9 63.7 53.5 66.7 Bauer, William J. 7 389 8.9 67.2 47.5 47.0 Bea, Carlos T. 9 393 9.5 93.7 76.6 49.8 Beam, Clarence A. 8 276 36.3 47.4 50.6 56.2 Beezer, Robert R. 9 219 6.3 46.2 35.2 28.5 Benavides, Fortunato P. 5 717 1.6 65.9 41.2 26.9 Benton, William D. 8 659 5.5 33.7 48.5 46.8 Berzon, Marsha S. 9 370 47.7 33.2 24.1 21.2 Birch, Stanley F., Jr. 11 1005 9.6 36.9 45.0 36.0 Black, Susan H. 11 1044 0.4 53.5 37.4 33.6 Boggs, Danny J. 6 235 40.1 20.7 34.7 64.0 Boudin, Michael 1 233 1.7 53.0 61.7 53.8 Bowman, Pasco M., II 8 201 15.8 86.8 49.5 25.2 Bright, Myron H. 8 217 72.9 100.0 69.1 0.0 Briscoe, Mary B. 10 501 10.8 26.4 40.2 67.6 Brorby, Wade 10 230 2.2 42.1 59.0 23.2 Bybee, Jay S. 9 357 2.9 61.8 74.7 55.8

174 N refers to the number of interactions the listed judge had in 2008 with other judges (district and appellate) in the dataset.

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Bye, Kermit E. 8 559 3.8 56.2 43.2 46.2 Cabranes, Jose A. 2 474 6.6 62.2 29.6 24.4 Calabresi, Guido 2 267 14.8 34.4 51.7 26.9 Callahan, Consuelo M. 9 372 4.3 65.2 36.7 41.9 Canby, William C., Jr. 9 324 13.3 67.6 0.0 50.5 Carnes, Edward E. 11 1028 2.5 55.6 48.1 34.4 Chagares, Michael A. 3 363 8.4 55.5 66.7 36.7 Clay, Eric L. 6 379 30.4 36.2 20.1 65.9 Clement, Edith B. 5 693 0.0 52.5 57.9 37.2 Clifton, Richard R. 9 306 10.3 66.9 65.3 47.1 Cole, Ransey G., Jr. 6 419 13.0 62.4 46.8 75.7 Colloton, Steven M. 8 591 2.6 63.3 42.6 54.9 Cook, Deborah L. 6 266 34.5 60.2 65.2 60.7 Cudahy, Richard D. 7 221 13.8 69.8 69.6 54.7 Daughtrey, Martha C. 6 313 7.0 53.4 39.1 80.0 Davis, W. Eugene 5 672 6.2 37.8 51.0 37.6 DeMoss, Harold R., Jr. 5 267 5.1 44.5 33.6 65.3 Dennis, James L. 5 702 0.4 48.2 44.6 46.2 Dubina, Joel F. 11 1020 5.2 54.2 55.8 33.0 Duncan, Allyson K. 4 633 0.4 53.7 26.4 51.4 Easterbrook, Frank H. 7 369 9.8 50.0 57.8 43.6 Ebel, David M. 10 381 2.9 27.1 30.3 77.3 Edmondson, James L. 11 384 9.6 40.8 53.7 53.4 Elrod, Jennifer W. 5 534 1.1 68.3 43.9 33.0 Evans, Terence T. 7 483 3.3 72.6 43.8 53.1 Fay, Peter T. 11 408 11.0 38.7 49.1 38.0 Fernandez, Ferdinand F. 9 246 42.3 86.4 100.0 39.5 Fisher, D. Michael 3 448 9.0 61.0 81.1 42.5 Fisher, Raymond C. 9 426 12.5 31.1 50.6 55.9 Flaum, Joel M. 7 480 7.3 47.0 70.7 31.5 Fletcher, Betty B. 9 416 8.6 46.3 64.9 67.9 Fletcher, William A. 9 323 22.8 22.6 30.9 29.7

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Fuentes, Julio M. 3 350 7.3 73.3 39.3 32.9 Garza, Emilio M. 5 672 16.9 43.1 34.2 39.1 Gibbons, Julia S. 6 363 3.2 35.5 33.9 62.3 Gibson, John R. 8 344 42.6 49.0 31.1 14.0 Gilman, Ronald L. 6 411 23.9 77.1 45.0 79.9 Gorsuch, Neil M. 10 430 3.9 45.6 56.2 72.3 Gould, Ronald M. 9 395 24.8 57.7 54.0 56.7 Graber, Susan 9 438 44.0 48.7 35.0 35.2 Gregory, Roger L. 4 663 10.7 51.9 49.8 65.6 Griffin, Richard A. 6 425 56.5 36.8 30.6 59.6 Gruender, Raymond W. 8 598 46.9 41.4 50.9 32.1 Hall, Cynthia H. 9 225 5.9 58.5 59.3 30.7 Hall, Peter W. 2 451 9.5 36.1 28.3 20.9 Hamilton, Clyde H. 4 495 0.3 70.5 46.2 46.7 Hansen, David R. 8 213 6.6 33.0 28.8 61.7 Hardiman, Thomas M. 3 359 22.6 61.6 65.2 33.2 Hartz, Harris L. 10 454 11.6 23.2 36.5 69.2 Hawkins, Michael D. 9 369 22.1 42.9 49.7 31.4 Haynes, Catharina 5 339 2.8 46.2 17.6 35.4 Higginbotham, Patrick E. 5 615 4.1 55.0 36.6 32.0 Holmes, Jerome A. 10 453 6.7 38.9 35.4 32.3 Howard, Jeffrey R. 1 340 1.2 64.6 76.5 46.2 Hull, Frank M. 11 1053 0.5 45.5 38.3 30.3 Ikuta, Sandra S. 9 350 28.9 53.7 60.7 44.0 Jacobs, Dennis G. 2 336 6.3 53.0 39.5 43.5 Jolly, E. Grady 5 689 10.4 47.6 35.1 43.5 Jones, Edith H. 5 437 15.6 51.0 21.3 51.5 Jordan, Kent A. 3 432 2.2 47.4 60.1 52.1 Kanne, Michael S. 7 420 4.0 48.3 51.4 41.5 Katzmann, Robert A. 2 354 4.7 52.9 28.0 36.9 Kelly, Paul J., Jr. 10 492 4.8 58.2 58.7 59.9 King, Carolyn D. 5 737 4.8 43.3 45.7 47.0

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King, Robert B. 4 699 2.5 54.9 37.6 36.2 Kleinfeld, Andrew J. 9 285 25.9 65.2 69.6 15.5 Kravitch, Phyllis A. 11 384 6.3 36.5 47.9 37.5 Leavy, Edward 9 264 3.7 64.0 41.3 32.2 Lipez, Kermit V. 1 300 2.5 78.7 20.4 51.0 Livingston, Debra A. 2 419 6.7 52.3 46.2 34.0 Loken, James B. 8 360 0.4 48.3 45.8 58.6 Lucero, Carlos F. 10 444 8.0 21.7 40.1 60.2 Lynch, Sandra L. 1 353 14.8 60.3 18.2 51.7 Manion, Daniel A. 7 444 4.4 46.4 41.5 56.6 Marcus, Stanley 11 1026 8.7 41.2 46.5 29.2 Martin, Boyce F., Jr. 6 334 24.3 75.2 13.0 37.7 McConnell, Michael W. 10 442 3.2 29.4 45.1 58.5 McKay, Monroe G. 10 322 6.0 39.1 1.8 36.6 McKeague, David W. 6 383 72.3 36.3 53.4 52.2 McKee, Theodore A. 3 331 10.4 71.0 38.9 40.9 McKeown, M. Margaret 9 359 11.6 21.6 40.4 45.2 Melloy, Michael J. 8 445 16.1 73.2 57.7 49.4 Merritt, Gilbert S., Jr. 6 212 100.0 78.6 45.5 61.4 Michael, M. Blane 4 650 36.0 49.9 44.6 25.0 Miner, Roger J. 2 219 11.5 73.5 45.4 28.6 Moore, Karen N. 6 433 28.1 66.0 31.5 100.0 Motz, Diana G. 4 570 3.0 60.0 48.2 42.8 Murphy, Diana E. 8 653 19.9 55.4 49.1 42.5 Murphy, Michael R. 10 467 9.6 56.6 14.2 56.9 Nelson, Thomas G. 9 249 9.0 37.7 70.6 54.1 Niemeyer, Paul V. 4 675 21.4 44.9 43.4 36.6 O’Brien, Terrence L. 10 338 46.5 28.5 40.0 20.9 O’Scannlain, Diarmuid F. 9 393 45.2 38.2 55.1 33.4 Owen, Priscilla R. 5 668 3.1 35.8 45.9 42.3 Paez, Richard A. 9 392 21.3 70.0 46.8 51.2 Parker, Barrington D., Jr. 2 382 3.7 33.4 30.1 34.2

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Pooler, Rosemary S. 2 363 17.6 47.9 45.2 22.5 Posner, Richard A. 7 380 18.7 49.0 44.9 36.4 Prado, Edward C. 5 738 2.3 48.9 44.4 30.2 Pregerson, Harry 9 260 16.7 86.1 11.6 49.4 Pryor, William H., Jr. 11 992 4.6 53.2 47.3 36.3 Raggi, Reena 2 444 2.1 34.9 46.4 30.8 Rawlinson, Johnnie B. 9 281 5.0 81.4 77.6 84.5 Reavley, Thomas M. 5 512 3.5 42.9 28.2 54.9 Reinhardt, Stephen R. 9 239 20.4 61.2 24.6 72.4 Rendell, Marjorie O. 3 324 13.6 88.8 42.0 61.0 Riley, William J. 8 579 41.8 37.7 28.9 5.1 Ripple, Kenneth F. 7 416 3.6 55.3 55.6 52.8 Rogers, John M. 6 370 67.6 35.5 47.1 65.1 Roth, Jane R. 3 393 4.9 39.0 52.8 37.0 Rovner, Ilana D. 7 429 6.6 57.9 46.2 51.9 Rymer, Pamela A. 9 312 26.9 82.2 35.3 56.0 Sack, Robert D. 2 377 2.9 32.1 56.1 29.0 Schroeder, Mary M. 9 315 10.2 55.7 61.1 51.0 Scirica, Anthony J. 3 293 2.0 57.0 31.6 46.2 Selya, Bruce M. 1 254 9.5 71.7 63.0 52.2 Shedd, Dennis W. 4 633 2.9 49.6 42.8 51.1 Shepherd, Bobby E. 8 605 5.5 49.0 36.5 55.5 Siler, Eugene E., Jr. 6 358 39.6 59.3 56.8 64.2 Silverman, Barry G. 9 354 15.7 52.6 29.3 24.0 Sloviter, Dolores K. 3 354 4.3 66.6 36.7 51.0 Smith, David B. 3 358 19.8 52.4 29.3 29.1 Smith, Jerry E. 5 684 6.6 45.8 26.5 50.8 Smith, Lavenski R. 8 618 1.1 74.4 60.2 27.6 Smith, Milan D., Jr. 9 345 26.3 53.9 45.5 26.5 Smith, Norman R. 9 330 7.5 45.7 55.5 42.3 Sotomayor, Sonia 2 360 17.3 39.3 57.2 48.1 Southwick, Leslie 5 660 1.6 30.7 45.3 39.1

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Stewart, Carl E. 5 764 7.6 36.1 36.8 38.0 Straub, Chester J. 2 296 8.7 18.6 32.3 32.2 Sutton, Jeffrey S. 6 305 1.8 60.4 67.8 65.1 Sykes, Diane S. 7 389 17.4 23.5 35.2 46.6 Tacha, Deanell R. 10 388 22.4 24.8 50.9 41.8 Tallman, Richard C. 9 279 33.0 63.2 12.6 27.2 Tashima, A. Wallace 9 435 5.9 79.9 23.2 44.5 Thomas, Sidney R. 9 536 2.9 61.7 32.4 57.0 Tinder, John D. 7 263 8.2 14.1 44.7 27.5 Tjoflat, Gerald B. 11 885 23.5 54.8 30.0 23.6 Torruella, Juan R. 1 345 22.2 46.5 43.2 47.4 Traxler, William B., Jr. 4 714 9.3 57.9 46.1 36.3 Trott, Stephen S. 9 204 9.7 12.0 55.7 44.5 Tymkovich, Timothy M. 10 531 9.3 49.0 47.5 51.1 Walker, John M., Jr. 2 211 13.0 0.0 40.4 37.9 Wallace, J. Clifford 9 291 8.7 39.1 51.2 50.4 Wardlaw, Kim M. 9 378 17.5 36.8 71.8 46.2 Wesley, Richard C. 2 427 6.8 42.4 33.1 33.8 Wiener, Jacques L., Jr. 5 738 13.5 36.5 43.5 35.0 Wilkins, William W. 4 279 8.3 85.8 25.0 21.8 Wilkinson, J. Harvie, III 4 617 7.0 49.8 37.5 39.0 Williams, Ann C. 7 384 12.5 60.8 35.2 38.5 Williams, Karen J. 4 221 26.9 46.4 79.3 59.3 Wilson, Charles R. 11 1111 0.7 49.0 47.1 40.7 Wollman, Roger L. 8 692 13.7 48.8 38.2 42.8 Wood, Diane P. 7 420 28.0 48.9 53.5 26.5

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APPENDIX C Types for All Studied Judges The following table includes judicial types exhibited in the period and cases studied for judges with at least 200 interactions with other judges. For the type, the political party listed is based upon the political party of the nominating President.

Judge Cir. N175 Judging Style Type Ambro, Thomas L. 3 398 Error Correcting Moderate Democrat Anderson, Robert L., III 11 1007 Collegial Moderate Democrat Anderson, Stephen H. 10 332 Incrementalist Moderate Republican Baldock, Bobby R. 10 352 Collegial Moderate Republican Barkett, Rosemary 11 949 Collegial Moderate Democrat Barksdale, Rhesa H. 5 678 Incrementalist Conservative Republican Barry, Maryanne T. 3 387 Error Correcting Moderate Democrat Batchelder, Alice M. 6 305 Regulating Conservative Republican Bauer, William J. 7 389 Error Correcting Moderate Republican Bea, Carlos T. 9 393 Regulating Moderate Republican Beam, Clarence A. 8 276 Regulating Conservative Republican Beezer, Robert R. 9 219 Collegial Moderate Republican Benavides, Fortunato P. 5 717 Error Correcting Moderate Democrat Benton, William D. 8 659 Incrementalist Moderate Republican Berzon, Marsha S. 9 370 Consensus Building Liberal Democrat Birch, Stanley F., Jr. 11 1005 Incrementalist Moderate Republican Black, Susan H. 11 1044 Collegial Moderate Republican Boggs, Danny J. 6 235 Trailblazing Conservative Republican Boudin, Michael 1 233 Regulating Moderate Republican Bowman, Pasco M., II 8 201 Error Correcting Moderate Republican Bright, Myron H. 8 217 Stalwart Liberal Democrat Briscoe, Mary B. 10 501 Minimalist Moderate Democrat Brorby, Wade 10 230 Incrementalist Moderate Republican Bybee, Jay S. 9 357 Regulating Moderate Republican

175 N refers to the number of interactions the listed judge had with other judges (district and appellate) in the dataset.

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Bye, Kermit E. 8 559 Collegial Moderate Democrat Cabranes, Jose A. 2 474 Error Correcting Moderate Democrat Calabresi, Guido 2 267 Incrementalist Moderate Democrat Callahan, Consuelo M. 9 372 Error Correcting Moderate Republican Canby, William C., Jr. 9 324 Error Correcting Moderate Democrat Carnes, Edward E. 11 1028 Collegial Moderate Republican Chagares, Michael A. 3 363 Incrementalist Moderate Republican Clay, Eric L. 6 379 Trailblazing Liberal Democrat Clement, Edith B. 5 693 Incrementalist Moderate Republican Clifton, Richard R. 9 306 Regulating Moderate Republican Cole, Ransey G., Jr. 6 419 Steadfast Moderate Democrat Colloton, Steven M. 8 591 Error Correcting Moderate Republican Cook, Deborah L. 6 266 Regulating Conservative Republican Cudahy, Richard D. 7 221 Regulating Moderate Democrat Daughtrey, Martha C. 6 313 Steadfast Moderate Democrat Davis, W. Eugene 5 672 Incrementalist Moderate Republican DeMoss, Harold R., Jr. 5 267 Minimalist Moderate Republican Dennis, James L. 5 702 Collegial Moderate Democrat Dubina, Joel F. 11 1020 Incrementalist Moderate Republican Duncan, Allyson K. 4 633 Error Correcting Moderate Republican Easterbrook, Frank H. 7 369 Incrementalist Moderate Republican Ebel, David M. 10 381 Minimalist Moderate Republican Edmondson, James L. 11 384 Regulating Moderate Republican Elrod, Jennifer W. 5 534 Error Correcting Moderate Republican Evans, Terence T. 7 483 Error Correcting Moderate Democrat Fay, Peter T. 11 408 Incrementalist Moderate Republican Fernandez, Ferdinand F. 9 246 Stalwart Conservative Republican Fisher, D. Michael 3 448 Regulating Moderate Republican Fisher, Raymond C. 9 426 Regulating Moderate Democrat Flaum, Joel M. 7 480 Incrementalist Moderate Republican Fletcher, Betty B. 9 416 Regulating Moderate Democrat Fletcher, William A. 9 323 Minimalist Liberal Democrat

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Fuentes, Julio M. 3 350 Error Correcting Moderate Democrat Garza, Emilio M. 5 672 Collegial Moderate Republican Gibbons, Julia S. 6 363 Minimalist Moderate Republican Consensus Building Conservative Gibson, John R. 8 344 Republican Gilman, Ronald L. 6 411 Steadfast Conservative Democrat Gorsuch, Neil M. 10 430 Regulating Moderate Republican Gould, Ronald M. 9 395 Regulating Liberal Democrat Graber, Susan 9 438 Consensus Building Liberal Democrat Gregory, Roger L. 4 663 Regulating Moderate Democrat Griffin, Richard A. 6 425 Trailblazing Conservative Republican Consensus Building Conservative Gruender, Raymond W. 8 598 Republican Hall, Cynthia H. 9 225 Incrementalist Moderate Republican Hall, Peter W. 2 451 Collegial Moderate Republican Hamilton, Clyde H. 4 495 Error Correcting Moderate Republican Hansen, David R. 8 213 Minimalist Moderate Republican Hardiman, Thomas M. 3 359 Incrementalist Conservative Republican Hartz, Harris L. 10 454 Minimalist Moderate Republican Hawkins, Michael D. 9 369 Incrementalist Liberal Democrat Haynes, Catharina 5 339 Collegial Moderate Republican Higginbotham, Patrick E. 5 615 Collegial Moderate Republican Holmes, Jerome A. 10 453 Collegial Moderate Republican Howard, Jeffrey R. 1 340 Regulating Moderate Republican Hull, Frank M. 11 1053 Collegial Moderate Democrat Ikuta, Sandra S. 9 350 Regulating Conservative Republican Jacobs, Dennis G. 2 336 Collegial Moderate Republican Jolly, E. Grady 5 689 Collegial Moderate Republican Jones, Edith H. 5 437 Error Correcting Moderate Republican Jordan, Kent A. 3 432 Regulating Moderate Republican Kanne, Michael S. 7 420 Collegial Moderate Republican Katzmann, Robert A. 2 354 Collegial Moderate Democrat Kelly, Paul J., Jr. 10 492 Regulating Moderate Republican

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King, Carolyn D. 5 737 Collegial Moderate Democrat King, Robert B. 4 699 Collegial Moderate Democrat Kleinfeld, Andrew J. 9 285 Incrementalist Conservative Republican Kravitch, Phyllis A. 11 384 Incrementalist Moderate Democrat Leavy, Edward 9 264 Error Correcting Moderate Republican Lipez, Kermit V. 1 300 Error Correcting Moderate Democrat Livingston, Debra A. 2 419 Collegial Moderate Republican Loken, James B. 8 360 Collegial Moderate Republican Lucero, Carlos F. 10 444 Minimalist Moderate Democrat Lynch, Sandra L. 1 353 Error Correcting Moderate Democrat Manion, Daniel A. 7 444 Collegial Moderate Republican Marcus, Stanley 11 1026 Incrementalist Moderate Republican Martin, Boyce F., Jr. 6 334 Error Correcting Liberal Democrat McConnell, Michael W. 10 442 Minimalist Moderate Republican McKay, Monroe G. 10 322 Collegial Moderate Democrat McKeague, David W. 6 383 Trailblazing Conservative Republican McKee, Theodore A. 3 331 Error Correcting Moderate Democrat McKeown, M. Margaret 9 359 Minimalist Moderate Democrat Melloy, Michael J. 8 445 Regulating Moderate Republican Merritt, Gilbert S., Jr. 6 212 Stalwart Liberal Democrat Michael, M. Blane 4 650 Incrementalist Liberal Democrat Miner, Roger J. 2 219 Error Correcting Moderate Republican Moore, Karen N. 6 433 Steadfast Liberal Democrat Motz, Diana G. 4 570 Collegial Moderate Democrat Murphy, Diana E. 8 653 Regulating Moderate Democrat Murphy, Michael R. 10 467 Error Correcting Moderate Democrat Nelson, Thomas G. 9 249 Regulating Moderate Republican Niemeyer, Paul V. 4 675 Incrementalist Conservative Republican Consensus Building Conservative O’Brien, Terrence L. 10 338 Republican Consensus Building Conservative O’Scannlain, Diarmuid F. 9 393 Republican Owen, Priscilla R. 5 668 Incrementalist Moderate Republican

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Paez, Richard A. 9 392 Regulating Liberal Democrat Parker, Barrington D., Jr. 2 382 Collegial Moderate Republican Pooler, Rosemary S. 2 363 Incrementalist Moderate Democrat Posner, Richard A. 7 380 Incrementalist Moderate Republican Prado, Edward C. 5 738 Collegial Moderate Republican Pregerson, Harry 9 260 Error Correcting Moderate Democrat Pryor, William H., Jr. 11 992 Collegial Moderate Republican Raggi, Reena 2 444 Incrementalist Moderate Republican Rawlinson, Johnnie B. 9 281 Regulating Moderate Democrat Reavley, Thomas M. 5 512 Error Correcting Moderate Democrat Reinhardt, Stephen R. 9 239 Steadfast Liberal Democrat Rendell, Marjorie O. 3 324 Error Correcting Moderate Democrat Consensus Building Conservative Riley, William J. 8 579 Republican Ripple, Kenneth F. 7 416 Regulating Moderate Republican Rogers, John M. 6 370 Trailblazing Conservative Republican Roth, Jane R. 3 393 Incrementalist Moderate Republican Rovner, Ilana D. 7 429 Collegial Moderate Republican Error Correcting Conservative Rymer, Pamela A. 9 312 Republican Sack, Robert D. 2 377 Incrementalist Moderate Democrat Schroeder, Mary M. 9 315 Regulating Moderate Democrat Scirica, Anthony J. 3 293 Error Correcting Moderate Republican Selya, Bruce M. 1 254 Regulating Moderate Republican Shedd, Dennis W. 4 633 Collegial Moderate Republican Shepherd, Bobby E. 8 605 Collegial Moderate Republican Siler, Eugene E., Jr. 6 358 Regulating Conservative Republican Silverman, Barry G. 9 354 Collegial Moderate Democrat Sloviter, Dolores K. 3 354 Error Correcting Moderate Democrat Smith, David B. 3 358 Collegial Moderate Republican Smith, Jerry E. 5 684 Error Correcting Moderate Republican Smith, Lavenski R. 8 618 Error Correcting Moderate Republican Smith, Milan D., Jr. 9 345 Incrementalist Liberal Republican

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Smith, Norman R. 9 330 Incrementalist Moderate Republican Sotomayor, Sonia 2 360 Regulating Moderate Democrat Southwick, Leslie 5 660 Incrementalist Moderate Republican Stewart, Carl E. 5 764 Collegial Moderate Democrat Straub, Chester J. 2 296 Minimalist Moderate Democrat Sutton, Jeffrey S. 6 305 Regulating Moderate Republican Sykes, Diane S. 7 389 Minimalist Moderate Republican Tacha, Deanell R. 10 388 Minimalist Conservative Republican Tallman, Richard C. 9 279 Collegial Conservative Democrat176 Tashima, A. Wallace 9 435 Error Correcting Moderate Democrat Thomas, Sidney R. 9 536 Error Correcting Moderate Democrat Tinder, John D. 7 263 Minimalist Moderate Republican Tjoflat, Gerald B. 11 885 Collegial Conservative Republican Torruella, Juan R. 1 345 Regulating Liberal Republican Traxler, William B., Jr. 4 714 Collegial Moderate Democrat Trott, Stephen S. 9 204 Minimalist Moderate Republican Tymkovich, Timothy M. 10 531 Collegial Moderate Republican Walker, John M., Jr. 2 211 Minimalist Moderate Republican Wallace, J. Clifford 9 291 Regulating Moderate Republican Wardlaw, Kim M. 9 378 Regulating Moderate Democrat Wesley, Richard C. 2 427 Collegial Moderate Republican Wiener, Jacques L., Jr. 5 738 Incrementalist Moderate Republican Wilkins, William W. 4 279 Error Correcting Moderate Republican Wilkinson, J. Harvie, III 4 617 Collegial Moderate Republican Williams, Ann C. 7 384 Error Correcting Moderate Democrat Williams, Karen J. 4 221 Regulating Conservative Republican Wilson, Charles R. 11 1111 Collegial Moderate Democrat Wollman, Roger L. 8 692 Collegial Moderate Republican

176 Judge Tallman was actually known as a Republican when appointed by President Clinton. Henry Weinstein, The Recall Campaign; Court to Reconsider Delay of Recall Vote, L.A. TIMES, Sept. 20, 2003, at A1. His nomination was part of a package of judges brokered between key Senators in order to get several Democratic judges confirmed. Nonetheless, for consistency in application of the terminology, he is referred to as a “Democrat” in the table.

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Wood, Diane P. 7 420 Incrementalist Liberal Democrat

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236 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 The Art of Crafting Opinions

Honorable Richard A. Posner

U.S. Court of Appeals for the Seventh Circuit

U.S. Court of Appeals 219 S. Dearborn Street Chicago, IL 60604 (312) 435-5850 Hon. Richard A. Posner is a judge on the U.S. Court of Appeals for the Seventh Circuit. Prior to joining the bench in 1981, Judge Posner was a law clerk to U.S. Supreme Court Justice William J. Brennan, an assistant to the solicitor general of the United States, and a law professor at both Stanford Law School and the University of Chicago Law School. He is the recipient of multiple honors and awards, including honorary degrees from leading American and foreign universities, the 2003 Research Award from the Fellows of the American Bar Foundation, the Learned Hand Medal for Excellence in Federal Jurisprudence from the Federal Bar Coun- cil in 2005, and the Ronald H. Coase Medal from the American Law and Economics Association in 2010. Judge Posner is a prolific writer, both of judicial opinions and articles. He has written a number of books, including Economic Analysis of Law (8th ed., 2011) and How Judges Think (2008), as well as many articles in legal and economic journals and book reviews in the popular press. The Art of Crafting Opinions

Table of Contents Presentation...... 241

The Art of Crafting Opinions ■ Posner ■ 239

Presentation

March 23, 2014

WRITING JUDICIAL OPINIONS

Richard A. Posner1

Ideas come from writing as much as writing comes from ideas.2

Some years ago I summarized my reservations about the quality of judicial opinion writing as follows:

First, there is a noticeable lack of candor and, second and related, a notable lack of concreteness, in judicial opinions… Third, there is an overuse of jargon, one of the marks of what I’ve called elsewhere the “pure” style of judicial opinion-writing. It is a style self-consciously professional; its an- tithesis, what I call the “impure” style, is simple, nontech- nical, colloquial, narrative, essayistic. Fourth is a lack of economy of expression—lack of con- siderateness for the audience for judicial opinions. Under this rubric can be grouped the tendency to overkill, to repetition, to tedium, and the clutter of citations, facts, quotations, and boilerplate, which are such characteristic features of judicial prose. Fifth is the preoccupation with trivia that is so marked a characteristic of the legal mind. It is the hypertrophy of the high degree of verbal care that is a genuine asset of the well- trained lawyer. Sixth is a surprising reluctance to use pictures in cases…The aversion to the visual is of limited significance in judicial writing but it is an excellent example of the flight from concreteness to abstractness that is such a pronounced feature of the legal professional’s style of thinking and writing. Seventh and last is the pall that “political correctness” casts over judicial writing, particularly with respect to gender; insistence on gender neutrality of pronouns is a recipe for stilted prose.

1 Judge, U.S. Court of Appeals for the Seventh Circuit; Senior Lecturer, Univer- sity of Chicago Law School. This a shortened and revised version of chapter 8 of my book Reflections on Judging (Harvard University Press, 2013). 2 Stephen J. Pune, Voice & Vision: A Guide to Writing History and Other Serious Nonfiction 280 (2009).

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The underlying problems are an exaggerated formalism, which is to say a desire to make a judicial opinion seem rigorous, logical, technical, even esoteric (not the everyday practical reasoning that judicial decision-making, much of the time, really is); a sheer lack of knowledge of, experience in, and aptitude for good writing; an excess of specialization related to the rise of law clerks and ghostwriting generally, which has made writing seem an eminently delegable component of judicial performance; the absence of a national culture of rhetoric, such as England had until recently; and, closely related, the philistine character of American culture, in which writing well, along with other aspects of humane culture, is not highly valued. …The decline of the humanities is likely to continue as more and more educational emphasis is placed on comput- ers and other aspects of technology, as the rise of ethnic diversity engenders ever greater anxiety over the traditional cultural hegemony of “dead white European males,” and as literature continues to lose ground to electronic communication and entertainment. The trend bodes ill for judicial writing. At the same time, variance in the quality of judicial prose is likely to decline as judicial writing is brought ever more under the aegis of ghostwriters (the law clerks and staff attorneys) drawn from the best law schools.3

I stand by these points, but I would cite another source of bad judicial writing as well: the unusual situation of an author (sometimes a judge, more commonly a law clerk) who knows that he will be published and read regardless of the preferences of his audience. West does not refuse to publish any of the opinions that federal judges submit to it for publication, and lawyers and judges must read the relevant judicial opinions whether readable or not, interesting or not, well written or not. Not having a publisher, or an audience, that must be pleased, judges tend not to think about whom they are writing for. They tend to write above the heads of lay persons (such as the litigants) but to write down to their professional audience, when they could communicate effectively with both by writing simply and directly.

3 Richard A. Posner, “Legal Writing Today,” 8 Scribes Journal of Legal Writing 35–36 (2001–2002) (footnotes omitted; emphasis in original).

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The initial decision that an appellate judge must make about opinion writing is not how to write, but whether to write his opinions or instead to edit his law clerks’ opinion drafts. The choice is between two models of the appellate judge: the writer model, which prevailed before judges had law clerks, and for a time after that before they had as many law clerks (and other staff, such as interns and externs) as they have now, and the manager model, which is dominant today. As judges’ staffs have expanded, hierarchy has increased; and as hierarchy increases, the judge, who is at the top of the hierarchy, increasingly defines his role as that of a manager. The management model of a court of appeals judge’s job has been taken to its furthest extreme in the “Becker model,” invented by the late Judge Edward Becker of the Third Circuit and adopted (though often in a dilute form) by a number of federal appellate judges. In that model the judge hires a former law clerk (not necessarily one of his former law clerks), who has additional legal experience besides the clerkship, to be his senior law clerk. The senior clerk as- signs opinion writing, editing, and other duties to the judge’s other clerks in accordance with his evaluation of their strengths and weaknesses, and these junior law clerks report to him rather than to the judge, with whom indeed they may have little face-to-face contact. The staff may include unpaid interns or externs as well, who report to the clerks. Sometimes the senior clerk is permanent, while the junior law clerks serve the usual one-year term; sometimes some or all of the clerks are permanent, though for budgetary reasons court of appeals judges are no longer permitted to have more than one permanent law clerk (but those who had more when the rule of only one was adopted can keep them).4 Af-

4 Law clerks’ salaries increase with experience. Most federal appellate law clerks are hired right out of law school and for only one year, and thus at the lowest salary. The salary range in Chicago (law clerks’ salaries are adjusted for cost of living) is $63,000 to $91,000, though a very few experienced clerks are

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ter an opinion drafted by one of the junior clerks is edited by the senior clerk (perhaps by the other junior clerks as well), it is submitted to the judge for final editing, which, depending on the judge, may be perfunctory at one extreme or, at the other extreme, come close to rewriting the opinion from scratch. Notice that the Becker model involves delegation by the judge not only of opinion drafting but also of opinion editing. This delegation is also found in the offices of many judges who have not gone all the way to the Becker model. There is a certain logic to this further delegation of what once was thought the judge’s work: a clerk who writes well enough to be entrusted with drafting a judicial opinion is likely to be a competent editor of another clerk’s draft. A decision to write the first draft of the opinion, and thus to reject the management model, is difficult for the judicial appointee who has spent many years in a managerial role in a law firm or government legal service; as a writer of first drafts, he is rusty. He may not realize that editing is no substitute for writing from scratch. The writer of the first draft controls the final product to a degree an editor is apt not to realize. The judge-editor also may not realize that the process of writing, which means searching for words, for sentences, in which to express meaning, is a process of discovery rather than just of expressing pre-formed ideas; that often it gives rise to new ideas;5 and that fluency in writing comes largely from—writing. “Opinion drafting places a great deal of responsibility on the clerk, because the first draft influences everything that follows. Even though judges work with drafts to make

eligible to be paid $106,000. Given the range, career clerks are substantially more expensive than clerks hired right out of law school and for just one year. 5 “Writing is ‘thinking in ink.’ The actual process of writing helps the writer analyze the subject at hand and draw conclusions. Thus, as you write, new ideas will bubble up that you should incorporate into the analysis.” Mary L. Dunnewold, Beth A. Honetschlager, and Brenda L. Tofte, Judicial Clerkships: A Practical Guide 91 (2010). Notice that “you” in this passage is a law clerk, not a judge.

244 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 Writing Judicial Opinions 5 them their own, they often adopt the authorities, organization, and language from their clerks’ drafts.”6 Some judges, as I said, though requiring their law clerks to draft an opinion, rewrite it almost from scratch. But that is an inefficient way of working, productive of needless delay. There are problems with lerk- drafted opinions: the lack of the judge’s personal voice, the voice of experience (the law clerk has no experience); and the likely incomplete understanding of, and greater likelihood of forgetting, a document written by someone else; and a lack of commitment— the judge who did not actually compose a critical argument in an earlier opinion of his may not notice or even care when a contrary argument appears in “his” opinion in a new case, written by a new law clerk. In the “Posner model,” emulated I fear by few if any other judges, the judge, being an experienced writer of judicial opinions if he’s been a judge for even just a few years (for he may be writing 50 or more opinions a year), writes a serviceable if rough draft shortly after the judges confer following the argument and the opinion assignments are made. He gives his draft to one of his law clerks, indicating mainly by bracketed directions in the draft what further research he wants the clerk to do. That further research is likely to be both legal and factual—and factual in the broadest sense, including not only facts in the record but also background facts gleaned from the Internet and elsewhere, and facts un- earthed in scientific and social scientific research. The clerk understands that he’s also to check all the facts in the draft carefully, delve into the record for key facts that the judge may have overlooked, criticize the form and substance, tone and clarity, of the judge’s opinion, suggest ideas, suggest style and word changes, and propose and if feasible pursue additional lines of research or ask the judge whether they are worth conducting.

6 Id. at 216. I would insert “most” between “though” and “judges.”

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The clerk presents the results of his work on the judge’s first draft in the form of comments either inserted in the draft, if short, or if not then in a separate memorandum. The judge then rewrites the draft. The cycle of judge-clerk interaction may be repeated several times before the opinion is ready to be citechecked by another law clerk (who is also welcome to make suggestions for further improvements) and then reworked a final time by the judge and finally circulated to the other judges on the panel. (The judge may also show part or all of his draft to another judge, soliciting suggestions, in advance of completion and circulation.) The entire process should not take more than three or four weeks unless the case is exceptionally complex or the judge or law clerks busy with other opinions. Notice in this unorthodox model of judge-clerk interaction the inversion of the judge’s and the clerk’s respective roles in the dominant model, in which the clerk writes the opinion draft and the judge edits it. In the “Posner model” the clerk’s work im- portantly includes making editorial suggestions on the judge’s draft. There is a long tradition of editors’ improving authors’ work. Think of Maxwell Perkins’ editing of Thomas Wolfe’s novels, or Ezra Pound’s editing of T. S. Eliot’s great poem The Waste Land. What would have been perverse would have been for Wolfe to ask Perkins to write the first draft of Wolfe’s novels (that is, novels that would be published under Wolfe’s name) or Eliot to ask Pound to write the first draft of The Waste Land. The judge who works from a law clerk’s draft must wait not only for the clerk to complete his research but also for this inexperienced opinion writer to write an opinion draft—and not a rough draft either, but a polished draft that will impress the judge. The conscientious judge is unlikely to be entirely satisfied with the law clerk’s draft. He is likely to ask the law clerk to conduct additional research, to trim here and expand there, to alter tone or focus or emphasis, and he may ask his other clerks to go over the draft as well. So a cycle is initiated much as when the judge writes the first

246 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 Writing Judicial Opinions 7 draft—but the cycle begins later because the law clerk will have labored for a longer time to produce his first draft than a judge to produce his first draft. And the judge who is not just an editor, but a rewriter, may find himself spending as much time rewriting the law clerk’s draft as he would have spent writing the first draft himself. When I was the chief judge of my court (1993–2000), I suggested to newly appointed judges that they write their own opinions and let the law clerks do the research, criticize the opinions, etc. but not write them. I said that maybe at first the judge, if not coming from a branch of the legal profession of which writing was a central component (academia, for example), would find it tough sledding to write a decent opinion. But practice makes perfect; opinion writing would become easier as the years rolled by (maybe months not years, considering how many opinions a “writing” federal court of appeals judge would write every year), but eventually the judge would develop a proficiency that no law clerk, working for only one year, could develop. The time of law clerks would be freed up for conducting research in greater depth than is possible when clerks are charged with writing judicial opinions, since the clerks (unless permanent, or nearing the end of their one-year term) are inexperienced opinion writers, laboring painstakingly, fearful of the judge’s criticism. I am not suggesting that a judge-authored opinion is likely to be a work of literature. To write with flair is a gift vouchsafed to few judges (to few people, period). But any intelligent person can teach himself to write clearly. It’s clarity that is needed in an age of complexity, clarity for example in being able to explain technical matters in a way that judges and lawyers of very limited technical knowledge can understand, and emulate in their own opinions and briefs. Clarity is of course not the only characteristic of good writing, and a judge (or law clerk) ambitious to write well and not merely intelligibly can be helped by guides to writing

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prose. They need not be guides to writing legal prose; the two best that I know are not. I strongly recommend them.7 The judge’s decision whether to be a writer or an editor does not determine the form of the judicial opinion, with the important qualification that a law clerk’s opinion draft is almost certain to be formalist because most law clerks are formalists. By legal formalism I mean the conception of law as a basically semantic enterprise, in which the facts of a new case are subsumed under verbal formulas derived from statutes, binding or at least unquestioned precedents, and other orthodox authoritative sources of law. The formalist believes that all one needs to decide a case, once the facts bearing directly on the case are determined, are the relevant legal formulas. Law clerks are formalists because what they bring to the job of being a law clerk (with the occasional exception of valuable background knowledge, for example in a technical field—if their judge values such knowledge in a law clerk) is mainly what they learned in law school. And what they learned—in part because it was what they expected they would learn—was the conventional sort of legal analysis that consists of fitting the facts of a case to a legal rule usually found in a statute or constitutional provision or in a judicial opinion. That was not all they were taught; at the better law schools, from which most federal law clerks come, most of the professors are not formalists. But it is what the students came to believe, from the style of most of the judicial opinions they read, that judges would expect from them as law clerks. Students are fed a steady diet of judicial opinions in law school, and not only are judges on average more formalist than law professors but judicial opinions are more formalist than the judges who are their nominal authors. Not only does a formalist conception of the judicial role allow law clerks to write judicial opinions in the style that comes naturally to them as a result of their legal education (“law clerks may

7 Pune, note 2 above; Helen Sword, Stylish Academic Writing (2012).

248 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 Writing Judicial Opinions 9 write well but—in speaking for another—they employ a safely formulaic mode usually learned in editing a law review”8), but also the materials out of which to fashion a formalist opinion can all be found either in the parties’ briefs or in publications readily available and familiar to the law clerks—statutes and cases of course but also treatises and law review articles. So judge and clerk can remain enclosed in a sealed compartment lined with dis- tinctively legal documents from which to generate a “right answer.” The results of this stylistic formalism can, to a fastidious writer, seem pretty ghastly. Clerk-written opinions abound in superfluous names and dates; superfluous procedural details; superfluous Latinisms (such as “ambit,” “arguendo,” “de minimis,” “eiusdem generis,” “sub silentio”); legal clichés (such as “plain meaning,” “strict scrutiny,” “instant case,” “totality of circumstances,” “abuse of discretion,” “facial adequacy,” “facial challenge,” “chilling effect,” “canons of construction,” “gravamen,” and “implicates” in such expressions as “the statute implicates First Amendment concerns”); legal terms that have an ambulatory rather than a fixed meaning (such as “rational basis” and “proxi- mate cause”); incurably vague “feel good” terms such as “justice” and “fairness”; pomposities such as “it is axiomatic that”; hypo- critical verbal curtsies (“with all due respect,” or “I respectfully dissent”); and gruesome juxtapositions (such as “Roe and its prog- eny,” meaning Roe v. Wade and the subsequent abortion-rights cases). To this add: timid obeisance to clumsy norms of politically correct speech; unintelligible abbreviations gleaned from the Blue- book9; archaic grammatical rules (for example, don’t begin a sen-

8 Michael Boudin, “Judge Henry Friendly and the Craft of Judging,” 159 Uni- versity of Pennsylvania Law Review 1, 13 (2010). 9 Some examples: Temp. Envtl. L. & Tech. J., ILSA J. Int’l & Comp. L., Emp. Rts. & Emp. Pol’y J., AIPLA Q.J., B.T.A.M. (P-H), A. Ct. Crim. App., A.F. Ct. Crim. App., C.G. Ct. Crim. App., N-M Ct. Crim. App., Ne. Reg’l Parole Comm’n, and Cent. Ill. Pub. Serv. Co.

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tence with “But,” “And,” “However,” or “Moreover”—these words are “postpositives,” and never say “on the other hand” without having first said “on the one hand”); archaic rules of punctuation, especially placement of commas; and offenses against good English (“choate” for “not inchoate,” “pled” for “pleaded” when referring to a complaint or other pleading, “proven” as a verb instead of “proved,” “absent” and “due to” as adverbs, “habeas claim” for “habeas corpus claim,” “he breached his contract” for “he broke his contract”) or against good Latin, such as “de minimus” for “de minimis.” Where stylistic formalism reigns, there is a fussy preoccupation with trivial forms of “correctness,” so law clerks spend a lot of time proofreading and bluebooking opinion drafts lest a typo- graphical error or an error of citation form end up in a published opinion. Time-consuming attention to unimportant detail is characteristic of legal practice, and is no doubt related to the custom (tenacious though at last eroding) of hourly billing, and to a certain insecurity that legal reasoning is really as cogent as formalists pretend. The accuracy and consistency of the judicial opinion at the formal level, along with length and detail and citations and quotations and professional jargon, serve as signals, though false ones, that the analytical content of the formal envelope is reliable. The judicial obsession with picky details may also reflect judges’ weaknesses as managers; they do not know how to prioritize. Judge Kozinski, in an essay surprisingly denouncing legal realism (he is a legal realist), thinks that law clerks keep judges honest (by which he means formalist): “You have to give them reasons [for the decision you favor], and those reasons better be pretty good—any law clerk worth his salt will argue with you if the reasons you give are unconvincing.”10 This is not true, unless very few law clerks are “worth [their] salt.” Especially if the judge has

10 Alex Kozinski, “What I Ate for Breakfast and Other Mysteries of Judicial Decision Making,” 26 Loyola of Los Angeles Law Review 993, 994 (1993).

250 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 Writing Judicial Opinions 11 come from a hierarchical practice environment, and given the age difference between law clerks and judges and that law clerks are on average sharper analytically than their judge, law clerks are reluctant to argue with the judge. Judges have been known to fire law clerks: Judge Kozinski is one of those judges. A further point contra Kozinski is that law clerks who draft opinions don’t have much time to study cases and other materials in advance of oral argument, because drafting judicial opinions intended for publication is a daunting task for just-graduated law students and consumes the bulk of the clerk’s time. A clerk’s doubts about the soundness of his judge’s take on the case are likelier to crystallize after the case has been argued and a tentative vote taken by the judges, when in drafting the opinion the clerk discovers a problem that neither he nor his judge had noticed. That will usually be too late. The clerk will be tempted to paper over the problem rather than admit to his judge that he had failed to provide accurate advice before the argument and the vote. His job now is to defend the vote. That is probably the judge’s expec- tation as well. If he’s a former advocate, it is natural for him to regard the opinion as a brief in support of the outcome. Formalism is tradition-bound, and the structure of the formalist opinion therefore predictable. The opinion, after a brief introduction, will proceed to a recitation of “the facts,” many of them irrelevant as well as uninteresting (dates, for example, where nothing turns on the date of a particular occurrence), yet with much left out that is both interesting and important and could be found in a five-minute search of the Web. For often a case involves mysterious business practices, arcane foreign customs, rare medical mishaps, and other esoterica that the lawyers in a case often don’t bother to explain to the judges. After the statement of facts (at once too many and too few) will come an unnecessary summary of the lower court’s opinion and of the parties’ contentions, and a statement of the standard of review. There really are only two standards of appellate review:

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plenary and deferential. Conventionally there are four basic standards (with many variants), which in ascending order of deference to the trial court or administrative agency are de novo, clearly erroneous, substantial evidence, and abuse of discretion. But the last three are, in practice, the same, because finer distinctions are beyond judges’ cognitive capacity. The multiplication of unusable distinctions is a familiar judicial pathology. At long last, after much huffing and puffing, comes the analysis in the opinion, often well concealed in quotations from previous judicial opinions (quotations often taken out of context, in defiance of Holmes’s dictum that “general propositions do not decide concrete cases”), in bromides that do not describe actual judicial practice (such as “we start from the words of the statute”— which judges never do; judges always start from some general sense of what the statute is about), in strings of citations that would be seen not to support the decision if anyone actually read the cited cases, and in vacuous appeals to “plain meaning” or made-up legislative “intent.” The opinion will be decked out in unnecessary section headings and ornamented with unnecessary footnotes. The aim of such drafting, to the extent it has an aim rather than being a product of habit and convention, is to make the opinion seem learned, comprehensive, orthodox, and exact, and to make the outcome seem to follow ineluctably from prior authoritative pronouncements with no addition from the writer, who pretends merely to have displayed the authorities that make the outcome an inevitability. The sheer strangeness of much judicial prose generated in these familiar ways deserves attention. Consider the following passage, from an opinion in a criminal case in which the defendant was complaining that because of his diabetes he was unlikely to survive his sentence, and that therefore the sentence should be shortened. (He lost the appeal.) The abstract character and lofty tone of the passage mark it as formalist:

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There is a worthy tradition that death in prison is not to be ordered lightly, and the probability that a convict will not live out his sentence should certainly give pause to a sentencing court. Wurzinger's [Wurzinger is the defendant] key argument is not the nonstarter that “age per se is a mitigating factor” (though he does attempt that argument as well), but that a sentence of death in prison is notably harsher than a sentence that stops even a short period before. Death is by universal consensus a uniquely traumatic experience, and prison often deprives defendants of the ability to be with their families or to otherwise control the circumstances of death. A sentence that forces this experience on a prisoner is quantitatively more severe than a sentence that does not consume the entirety of a defendant's life, inflicting greater punishment and creating a stronger deterrent effect. See, e.g., United States v. Patriarca, 948 F.2d 789, 793 (1st Cir. 1991) (holding that an increase in penalty that ensured death in prison would likely deter bail jumping). Additionally, of course, the physical constraints of a dying illness will inca- pacitate some defendants as effectively as imprisonment, making such a long sentence unnecessary.11

The paragraph begins oddly by implying, obviously unintentionally, that the defendant has been ordered to die in prison (“death in prison is not to be ordered lightly”). It then states without explanation that age can’t be a mitigating factor in sentencing, though it can be, as the sentencing guidelines recognize,12 since recidivism is less likely the older the defendant. A strange clause follows: “Death is by universal consensus a uniquely traumatic experience.” The reader doesn’t have to be told what death is, and anyway what the court is talking about is not death itself but rather the prospect of imminent death that accompanies dying. A dying person would rather be at home with his family than in a prison, and his family would want this too. But that is not, the

11 United States v. Wurzinger, 467 F.3d 649, 652 (7th Cir. 2006) (citations, with the exception of Patriarca, omitted). 12 U.S.S.G. § 5H1.1. See also United States v. Johnson, 685 F.3d 660, 661–662 (7th Cir. 2012), and studies cited there.

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court neglects to mention, a basis for shortening an otherwise appropriate sentence. Rather it is a basis for releasing dying prisoners, whatever the length of their sentences—a civilized practice unless one is dealing with a monster, which Wurzinger, a middle- aged meth dealer, was not. The next sentence in the paragraph—“A [prison] sentence that forces this experience on a prisoner [death in prison] is quantitatively more severe than a sentence that does not consume the entirety of a defendant’s life, inflicting greater punishment and creating a stronger deterrent effect”—is no improvement. The word “quantitatively” does not belong; “consume the entirety of a defendant’s life” is labored; and “creating a stronger deterrent effect” sounds as if not releasing a dying prisoner may be an appropriate way of making a long sentence more painful and so achieving greater deterrence—an uncivilized mode of jacking up punishment if I am right that releasing dying prisoners would be a civilized practice. And finally there is the mysterious parenthetical remark that the Patriarca case had held that “an increase in penalty that ensured death in prison would likely deter bail jumping.” What could that mean? You have to go to Patriarca to find out, and you discover there that all the court meant was that a defendant would be unlikely to jump bail if he knew that the consequence were he caught might be a sentence so long that he would die in prison. If judges can’t or won’t write clearly and simply, I don’t see how they (how we) can cope with the complexities of modernity. If a judge can’t articulate a complex issue clearly, it probably means he doesn’t understand it and that most of his readers will not understand it. The struggle to be clear is inseparable from the struggle to understand. The tendency of formalism is to opt out of both struggles. But enough of complaining; I want to be constructive. I believe that both formalist and realist, and whether judge or law clerk, can write a better, a more readable, and also a more honest

254 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 Writing Judicial Opinions 15 opinion by heeding a few simple rules (I realize that some of these will stick in the formalist’s craw): 1. Don’t be a jargonista. Legal jargon obfuscates, and deceives the legal writer into thinking he’s writing with precision, when he’s simply writing anachronistically. Some technical language is inescapable; the judge cannot simply rename legal doctrines that have established, even if opaque, names, such as “consideration,” “promissory estoppel,” “res ipsa loquitur,” and “burden of production.” But the examples I gave earlier of fusty legalisms can be replaced with plain English. 2. Pretend to be writing for an intelligent lay audience. That will help you avoid jargon, turgid prose, footnotes, long quotations, tedious repetitions, and the other earmarks of conventional legal writing. 3. State the purpose, unless obvious, of any doctrine on which the opinion relies. This is a check against invoking doctrines that make no sense—maybe they did once but they have since suc- cumbed to mindless repetition. 4. Put off announcing the decision (affirmed, reversed, dismissed, etc.) until the end of the opinion. When as is common it is laconically announced at the beginning, the impression conveyed is that what follows is simply the rationalization of a result reached on undisclosed grounds. This suggestion is “rhetorical” because of course the outcome will have been determined, at least tentatively, before the opinion was written. But it is not dishonest rhetoric to put the conclusion after rather than before the analysis that supports it, and by doing so make the opinion, at least, less dogmatic. (A compromise is to say at the outset, “For reasons to be explained, the judgment of the district court is affirmed [reversed, etc.].”) 5. In a case in which the panel is split, avoid referring in the majority opinion to the dissenting opinion, a practice that has become common in Supreme Court opinions. Such references invite the reader to interrupt his reading of the majority opinion to see

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what the author is responding to (often heatedly), or to suspend belief pending the reading of the dissenting opinion. The way to deal with arguments in the dissenting opinion that are worth re- plying to is to state them without attribution and then refute them if you can. 6. Avoid acronyms and abbreviations other than the obvious ones, such as FBI and etc. They are ugly and distracting, as well as often being opaque to the reader. Even if the opinion writer spells out the acronym or abbreviation when first using it, readers may have difficulty keeping the meaning in mind as they read on. 7. Eschew footnotes, and not only ones duelling with dissenters. A judicial opinion is not a scholarly article. Footnote material peripheral to the opinion can be deleted; if important it can be worked into the text. 8. Ask yourself—about every comma, every word, every sentence, every parenthetical phrase or clause, every paragraph, in the opinion you’re about to circulate to the other judges on the panel—what work does this word, this sentence, etc., do? If the answer is “nothing,” it should be deleted. Facts, names, dates, procedural details—how often they merely pad out an opinion! Must every opinion list the parties’ contentions? For that matter, must all the parties be mentioned? No, because often the caption of a case will list parties that have dropped out or were supernu- merary from the beginning. Must every opinion include a detailed summary of the district court’s or administrative agency’s opinion? Repeat the standard of review? Assure the reader that the court has given “careful” consideration to the issues? (An empty, self-congratulatory flourish.) Demonstrate, in short, that the liter- ary culture in America is indeed dead? 9. Be sure to read every case, statute, regulation, article, treatise, etc., cited in the opinion. A judge shouldn’t trust the law clerk who found the item and inserted it (or, if the judge writes his own opinions, who suggested that the judge do so) to have characterized it correctly. Not that one will always have time to read the

256 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 Writing Judicial Opinions 17 entire case, statute, regulation, article, treatise, etc., but the judge should read the material, within the cited work, that his opinion cites and enough of the text before and after the key passages in the cited material to be sure he understands the context. These are rules for the realist as well as for the formalist. But the realist needs two additional rules: 10. Eschew solemnity and pomposity in your opinions but include everything you’re conscious of having influenced the decision—so more dicta, more attention to the real-world background and consequences of the decision, and receptivity to the light that other fields of thought can cast on law. 11. Part of being realistic is to be practical and candid, and part of sounding realistic is to be informal—so write without pre- tense or adornment, striving for the “impure” style that I have argued elsewhere is superior to the “pure” style of the formalist opinion.13 The impure style is the style epitomized by Justice Rob- ert Jackson, who “rarely seemed to be searching for the proper ‘judicial’ stance or tone in his opinions. Instead, he appeared capable of expanding the stylistic range of opinion writing to accommodate his human reactions…In such moments the distance between judges and mortals was suddenly shortened.”14 Other highly regarded judges and Justices, including John Marshall, Ol- iver Wendell Holmes, Benjamin Cardozo, Learned Hand, and Roger Traynor, were practitioners of the “impure” style as well (the impression of Cardozo’s style as being overripe is based on his books and essays, not on his opinions). Yet they are not considered to have “lowered” the tone of the judiciary by writing as they did. As Holmes once said, a judge’s opinions don’t have to be heavy in order to be weighty. William Popkin, who in his book on judicial opinions terms what I am calling the “impure” style the “personal voice,” singles

13 Richard A. Posner, Law and Literature, ch. 9 (3d ed. 2009). 14 G. Edward White, The American Judicial Tradition: Profiles of Leading American Judges 185 (3d ed. 2007).

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out Holmes’s opinions as “provid[ing] the best examples of a personal judicial voice…Holmes’s language is direct, unadorned, and without artifice, neither magisterial nor professional. He uses language shared by a community that includes both the judicial author and the public audience.”15 Popkin also describes Holmes’s personal voice as authoritative and contrasts it with what he calls a “personal/exploratory” style, which he illustrates with quotations from opinions of mine,16 explaining:

A judge who adopts an exploratory tone shares with the audience the difficulty of reaching a decision, rather than speaking down to the reader by adopting an authoritative tone. There are three ways in which Posner opinions are exploratory. The first is that he admits doubts about how to find the right answer. The second is that the opinion reads as though the author is thinking out loud about how to work through the issues—often speculating about questions that turn out not to be essential to dispose of the case but that are part of the judge’s thought process. The third way relates to the substantive criteria used to reach a decision. Posner rejects clear-sounding rules for deciding a case, such as textualism in statutory interpretation. Instead, he prefers more fuzzy standards (often the purpose of the underlying rule) or rules-with-exceptions, except when there are good pragmatic reasons for adopting a simple-to-apply rule.17

Popkin justifies the approach as follows:

The public projection of judicial authority through an authoritative institutional and individual style of presenting judicial opinions has always existed in tension with the internal professional reality that the development of the law is a messy task, fraught with conflict and uncertainty. And this has placed tremendous pressure in the Anglo-American tradition on the judicial opinion, which must implement the

15 William D. Popkin, Evolution of the Judicial Opinion: Institutional and Individual Styles 146–147 (2007). 16 See id. at 153–169. 17 Id. at 159.

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dual external and internal goals of preserving judicial authority and developing judicial law. That pressure has only increased in the modern legal culture where judges acknowledge the intersection of law and politics, reject the older tradition of judges authoritatively declaring law derived from legal principle, and consider an institutional base for judging to be insufficient support for justifying judicial law in a legal system where democratic legislation is now the dominant source of law. The judge is no Hercules. This leaves modern judges with the difficult task of ap- pealing to an external source of substantive law, without the protective armor of authoritative legal principle or a completely secure institutional base. My suggestion for responding to this difficulty…is to make greater use of a personal/exploratory style of presenting judicial opinions, as illustrated by Posner’s approach. This style implements what I call “democratic judging,” which is suited to a legal culture where law and politics are clearly related and in which a democratic process is essential to maintaining the authority of government institutions.18

The Morris Opinion I may be able to make my reservations about formalist opinion writing clearer by discussing a representative formalist opinion of the U.S. Court of Appeals for the District of Columbia, one of the best federal courts of appeals. It is the opinion in a criminal case called United States v. Morris.19 I reprint it in full at the end of this chapter—along with the opinion I would have written had I been the assigned judge. The court’s opinion is 3237 words long; my version is 602 words long. The main issue in Morris was whether the defendant had used a gun “during and in relation to a drug trafficking offense.” The jury found that he had, and he appealed, challenging both that conviction and his conviction for the underlying drug offense. The opinion, after stating that “we reject both challenges and affirm the judgment below” (not a good start, in my view), proceeds to a description of the crimes and the course of the trial. The defendant

18 Id. at 168–169 (footnotes omitted). 19 977 F.2d 617 (D.C. Cir. 1992).

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had been arrested in a one-bedroom apartment in which the police also found 100 small ziplock bags containing cocaine, plus three loaded pistols. Two of the guns were found under the cushions of the living room couch on which Morris was sitting when the officers entered, and the third in a nightstand in the bedroom. The bags of cocaine were hidden in ducts in the bedroom ceiling. We are told the date on which Morris was arrested and his apartment searched. We even learn the street address of the apartment. These details of time and place are extraneous. Then comes a brief, unexceptionable, but also unnecessary statement of the standard of appellate review—unnecessary because it is well known and because nothing in the case turns on it—and this is followed by a discussion of Morris’s opening gambit in the appeal: that there was not enough evidence to convict him of possession of the drugs. “Possession, of course, can be either actual or constructive,” the opinion states. Actually “constructive possession” is, at best, a tricky concept, which exposes the “of course” as bluster. The reader is not helped by being told that constructive possession “requires evidence supporting the conclusion that the defendant had the ability to exercise knowing ‘dominion and control.’” For what does the archaic word “dominion” add to “control”? And why should ability to control, di- vorced from control, count as—control, and therefore possession? Or is possession somehow different from control? Nor is the reader helped to be told that “a jury is entitled to infer that a person exercises constructive possession over items found in his home.” The opinion reviews the facts and finds “ample evidence from which the jury could infer that Morris lived alone in the apartment and exercised constructive possession over its contents.” The “ample” is superfluous, as are most adjectives and adverbs in judicial opinions—they add needless emphasis, and often strike the reader as exaggerations, even as whistling in the dark.

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One begins to sense that an elephant gun is being discharged against a mouse. Morris was found in an apartment fairly burst- ing with drugs, and there was plenty of evidence that he was the only resident. He testified, it is true, that he was just a visitor— that he had in fact, by an unhappy coincidence, showed up just a few minutes before the police raid. The jury did not have to believe this and obviously did not. It believed he was the tenant, so the drugs must have been his, since no theory was advanced as to who else might have owned them if Morris was the tenant. There is really no more that the opinion needed to say about the drug conviction. The foray into “constructive” possession was as confusing as it was needless. What can “constructive” possession of the contents of one’s own apartment mean? Morris was sitting on his couch when the police entered. Was he in merely “constructive” possession of the couch? If so, what is “actual” possession? Does one “actually possess”a gun only when one is holding it in one’s hand? In fact, does “constructive possession” do any work in law? I think not, once one recognizes that “possession” does not just mean holding something in one’s hand. Actual versus constructive possession is one of the many unhelpful distinctions in legal analysis; it should be retired. The bulk of the Morris opinion is given over to the defendant’s challenge to his conviction for the distinct offense of having used or carried a gun during and in relation to his drug dealings. The opinion says that the court is going to analyze this as a “use” case rather than a “carry” case. But a footnote toys with the alarming possibility—the sort of thing that makes the laity wonder about the legal mind—that Morris could have been found to be “carrying” the two guns found under the couch on which he was sitting when the officers entered the apartment. And here is a warning against footnotes in judicial opinions: although the “carry” footnote says that the guns were under the couch, the state-

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ment of facts earlier in the opinion had said they were in the couch, under the seat cushions. In the text of the opinion we’re told that the test for the “use” offense is whether “the gun facilitated or had a role in the trafficking offense” (and what is the difference between “facilitating”and “having a role”?) and that to help in applying the test “this court has identified a number of factors…We discuss only some of them here, recognizing that courts have identified and will identify others.” This is also alarming, since, as I noted in chapter 3, multifactor tests are difficult to apply objectively. And when the factors are numerous, unweighted, and open-ended (“and will identify others”), a multifactor test is an invitation to the exercise of uncanalized discretionary authority.20 The first factor in the multifactor test applied by the court is possession. But while stressing its importance, the opinion also expresses puzzlement about how someone could use a gun that he didn’t possess. The obvious answer, overlooked by the court, is that he could threaten to use a gun that was not his—and that he would never have tried to grab—but that was within his reach, making his threatening gesture credible. The opinion states that “mere possession of a gun even by a drug trafficker does not violate the statute” but that the statute does reach (as the court had already told us) “any case in which the gun facilitated or had a role in the trafficking offense.” This means that “the defendant’s possession of the gun is an important factor,” and “possession, of course [of course], encompasses joint, as well as constructive possession.” It begins to look as if, despite the initial denial, the court thinks that mere possession of a gun by

20 Similar criticisms are made in Nightingale Home Healthcare, Inc. v. Anodyne Therapy, LLC, 626 F.3d 958 (7th Cir. 2010); Menard, Inc. v. Commissioner of Inter- nal Revenue, 560 F.3d 620, 622–23 (7th Cir. 2009); Reinsurance Co. of America v. Administratia Asigurarilor de Stat, 902 F.2d 1275, 1283 (7th Cir. 1990) (concurring opinion), and Michael D. Cicchini, “Dead Again: The Latest Demise of the Con- frontation Clause,” 80 Fordham Law Review 1301 (2011).

262 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 Writing Judicial Opinions 23 a drug dealer is use during and in relation to the drug offense. (That would be strange: does a police officer “use” his gun every day, by virtue of the fact that he wears it in a holster on his belt every day?) But maybe not, if the gun is in a safe-deposit box, for “a gun kept close at hand is more likely being used for protection than a gun packed away in a hard-to-reach spot.” But most drug dealers, like most other handgun owners, have no use for their guns other than protection, so why would they ever pack them away in hard-to-reach places? The opinion discusses other elements of the multifactor test, such as the “proximity of the gun to the drugs.”‘ It is true that, other things being equal, the closer the gun is to the drugs the more likely the use that the possessor is making of the gun and the drugs is conjoint. So one is surprised to find the court saying that proximity can cut either way. The court gives the curious example of a case in which the gun and the drugs were found together in the pocket of a raincoat in the defendant’s closet; the inference was therefore that the gun was intended only to be used for some future sale, when the defendant put on his coat and went outside. But it wasn’t the proximity of the gun to the drugs that tended to show that the gun was not intended for use in connection with a current sale; it was the fact that both the gun and the drugs were in a closet. The next factors discussed are “whether the gun is loaded” and “the number and type of guns,” but these two, really three, factors actually are irrelevant, because the opinion makes clear that one unloaded gun of ordinary design accessible to Morris would have been quite enough for his conviction to be sustained, especially since the government’s expert witness testified to “the well-nigh universal use of guns to protect such [drug-trafficking] operations.” The least meaningful factor discussed in the opinion is whether the gun is on “open display.” If it is, this suggests “a deterrent to poachers…This is not to say, however, that a gun that is within

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reach, though out of sight, does not also strongly suggest its intended use for protection of the drugs.” So heads the government wins, tails the defendant loses—which makes “open display” not merely the “least meaningful” factor, but meaningless. A distress- ing feature of judicial opinions is how often they include meaningless statements. In the otherwise unrelated case of Consumer Product Safety Commission v. GTE Sylvania, Inc., for example, the Supreme Court said—and it has repeated this in subsequent cases, as have lower courts—that “absent a clearly expressed legislative intention to the contrary, [the language of the statute] must ordinarily be regarded as conclusive.”21 The word “ordinarily” ren- ders the statement meaningless. Even if there is no “clearly expressed legislative intention” that contradicts the statutory language, adherence to that language is required only “ordinarily.” “Ordinarily” one applies a statute as written; that is the default interpretation. The entire challenge of statutory interpretation consists in identifying and applying the exceptions; the Sylvania formula ducks the challenge and as a result says nothing worth saying. I grant that judicial verbosity and redundancy have a rhetorical function, though an unworthy one. Reciting truisms and trudging patiently through a host of factors mentioned in previous cases convey an impression of irrefutability, deliberateness, moving patiently, step by step, leaving no stone unturned. It is a reassuring style, not only because it signals (sometimes mislead- ingly) thoroughness but also because it enables the opinion to be padded with a number of unexceptionable propositions. The more truthful statements there are in a judicial opinion, the more truthful the opinion seems, even if the truthful statements are plati- tudes. Judges understandably are uncomfortable issuing opinions to the effect that “we have very little sense of what is going on in this case. The record is poorly developed, and the lawyers are

21 447 U.S. 102, 108 (1980).

264 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 Writing Judicial Opinions 25 lousy. We have no confidence that we have got it right. We know we’re groping in the dark. But we’re paid to decide cases, so here goes.” Yet that is the subtext of countless appellate opinions. The simplest cases are not brought, or not appealed, or are decided in unpublished opinions (sometimes with no opinion—just the word “affirmed”). A substantial fraction of published appellate opinions are found in close cases, and another substantial fraction in cases that do not seem close but that are in a muddle of one sort of another. The unnecessary details and truisms that stud judicial opinions create a soothing façade of facticity. To return to the gun case: Americans love guns and fear vio- lent crime. Many law-abiding Americans, including law-abiding residents of big-city slums, keep loaded guns in their homes to protect themselves from intruders. Some residents of slums are not law-abiding yet keep loaded guns in their homes for reasons unrelated to their illegal activities—in fact for the same reason as the law-abiding people. The challenge to the courts in administer- ing the “use or carry” statute is, one might have thought, to distinguish between having a gun for self-protection and having it for the protection of one’s drug business, or of oneself in one’s capacity as a drug dealer. Morris does not relate the factors in its multifactor test to the task of distinguishing between these two possible inferences from a defendant’s having loaded guns lying about. The relation is not obvious. It would be absurd to suppose, for example, that the concept of “possession” could help distinguish between a gun kept for self-protection and a gun kept for the defense of illegal drugs; or that whether the gun was loaded, working, accessible to the owner, and strategically placed for defense of self and property could do so. As the size of the arsenal grows, as the arsenal takes on a more “professional” character, as the proximity of the arsenal to the drugs increases, the inference that the guns are being used to defend drugs rather than (just) person or other property grows. The decisive factor in Morris’s case was that he had

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stuffed two guns under the cushions of his living-room couch—an extraordinary location for a home defense arsenal but a good one if he sells drugs in his living room. Rather than zero in on this critical fact the court actually forgot it in the “carry” footnote. The style of the opinion had retarded the search for meaning. With its tedious marshaling of factors and facts and its dense citation of previous cases (twenty-five in all, mostly concerned with the gun charge), the opinion tries to sweep the reader to a confident conclusion that Morris was guilty of the gun offense as well as of the drug offense. It is the style that comes naturally to the pen of a person who is legally trained. I have not been picking on a weak opinion, or a heterodox one. I am guessing that the opinion was written by a law clerk, and edited but not rewritten extensively by the judge who was its nominal author.22 The opinion has the exhaustiveness of the anxious novice author and the impersonality one also expects when a clerk is the author—he is hardly likely to want to inject his personality, and would likewise think it impertinent to try to inject the judge’s. Readers of judge-written opinions, in contrast, learn much about the authors in experiencing the unmediated encounter of judge with case. The Morris opinion also occasions reflection on the issue of candor and self-knowledge in judicial opinions. Candor should be distinguished from honesty. A judge may believe that everything in his opinion is true, at least so far as he can determine truth, yet be holding back some of the considerations that (as he is aware) inclined him to vote to decide the case the way he did. I would call such an opinion honest but uncandid. A candid opinion would

22 The judge acknowledged generally working from opinion drafts by her law clerks. Patricia M. Wald, “How I Write,” 4 Scribes Journal of Legal Writing 55, 59– 61 (1993). Judge Wald, by the way, has had an extremely distinguished legal career; after retiring from the court of appeals in 1999 she became a prominent figure in international law and adjudication. I am not picking on an average, let alone below-average, judge. See “Patricia Wald,” Wikipedia, http://en.wikipedia.org/wiki/Patricia_Wald (visited Dec. 25, 2012).

266 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 Writing Judicial Opinions 27 state all the considerations that the judge was conscious of having influenced his judicial vote. Yet to the extent the judge was unaware of all those considerations, the opinion, though candid, would be incomplete. The best opinion—the most authentic and most informative—would be a candid opinion by a judge who was aware of all the considerations that moved him: an opinion combining candor with self-knowledge. Virtually no official public document is fully candid, or should be. It’s an instrument of government rather than a communication from the heart. In the case of an appellate opinion, other than a dissent or concurrence joined in by no other judge, the author may need to compromise his views or blunt the opinion’s rhetorical thrusts in order to persuade other judges to join it. And concern with preserving collegiality, as well as consideration for the feelings of litigants and their lawyers, may properly induce a judge to turn down his rhetorical volume. So “let it all hang out” is not a good judicial motto. Yet a judicial opinion can be decorous yet candid, even if not quite 100 percent candid. When one reads an opinion by Holmes, or Learned Hand, or Robert Jackson, or Henry Friendly, one has the sense (and it is confirmed by biographical information) that everything or almost everything that influenced the judge’s judicial vote is set forth in the opinion; that one has therefore a complete and accurate account of the decisional process, or at least a close approxi- mation to such an account. In contrast, reading an opinion by Frankfurter one often senses both that it contains statements that he could not have believed (generally these are exaggerations rather than outright falsehoods) and that the opinion does not contain all the drivers of the result. We sense that he is not leveling with the reader, or indeed with himself. And that is true of many judges, indeed probably of most judges in at least some, and often many, cases. And so another rule of good judicial opinion writing is that before circulating an opinion draft to the other judges on the panel

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the judge should ask himself whether he believes everything in his draft and if the answer is “no” he should delete the portions he doesn’t believe. He should also ask himself whether there may be something lurking at the back or bottom of his mind that has influenced his analysis and conclusion, and if so he should state it. The last rule I propose is that the judge (or law clerk, if the judge has delegated opinion writing to his law clerks) write clearly in the special sense of writing in a way that makes the opinion intelligible to nonlawyers. Recently a law professor (I don’t recall the law school) told me to my surprise that “law students believe that Judge Posner must love law students.” She explained that even entering law students could understand my opinions, but not (or not often) those of other judges, and that the students infer that since I would doubtless prefer to write like other judges, only love could have motivated me to write so that students could understand what I was saying. I do like law students, although I would not go so far as to say that I love them; and I would like them to be able to understand my opinions and I would like nonlawyers—the few who might be inclined to read a judicial opinion occasionally—to be able to read them too. But my main reason for trying to write clearly (and I do try—I am not a naturally clear writer) is that unless I reduce a case to its simplest possible terms I can’t be confident that I actually understand it and that my decision is right, or at least sensible (often one can’t be sure what the correct outcome is). One test of whether a decision is sensible is whether, if it were explained to an intelligent layperson, he or she would think it correct, and not stalk off mumbling “Mr. Bumble in Oliver Twist was right: if this decision is compelled by the law, the law is a ass.” Not that “sensible” and (legally) “correct” are synonyms. Le- gal justice is not synonymous with justice perceived in lay terms; adjudication by a professional judge is not to be equated to the resolution of a dispute by a nonlawyer acquaintance of the disputants. The judge is an institutional actor hedged in by restrictions

268 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 Writing Judicial Opinions 29 on his exercise of discretion to do “what is right”—restrictions that include the authority of legislators, the force of precedent, and “the rule of law” (a misunderstood term: it properly means deciding cases without regard to the relative attractiveness, social status, or other idiosyncratic features of the particular litigants). But before voting for an outcome deformed by institutional conistrants one wants to be sure that those constraints really do require a decision that no layperson would think sensible.

APPENDIX

UNITED STATES V. MORRIS, 977 F.2d 617 (D.C. CIR. 1992)

Appellant Robert Morris was convicted of possession of cocaine with intent to sell, in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(B)(iii), and for using or carrying a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1). He appeals both convictions on the ground that the evidence was insufficient to support either charge. We reject both challenges and affirm the judgment below. I. BACKGROUND On December 11, 1990, officers of the Metropolitan Police Department executed a search warrant on a one-bedroom apartment at 2525 14th Street, N.E., in the District of Columbia. Upon entering the apartment, the officers found appellant seated on a small couch in the living room; they detained him while they searched the apartment. The search produced two ziplock bags containing a total of 15.7 grams of crack cocaine divided among 100 smaller ziplock bags, $500 in cash, empty ziplock bags, razor blades, and three loaded and operable pistols. Two of the guns were under the cushions of the couch on which appellant sat; the third was in a nightstand in the bedroom. The cocaine and the cash were in an air duct vent in the ceiling of the bedroom. In the drawer of a dresser in the bedroom, the officers found two birthday cards; appellant's name was on the envelope of one, and the other was for a “son,” signed “Mr. and Mrs. B.G. Morris” and dated November 30, 1990. No address was on either. In a hallway closet, the officers found a laundry ticket dated December 3, 1990, and bearing the name “E. Morris.” There were no identifiable fingerprints on any of these items. The officers arrested appellant, who was indicted on two counts: possession with intent to distribute in excess of five grams of cocaine

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base and using or carrying a firearm in relation to the possession offense. At trial, two officers testified that at the time of the search, Morris said that he had been living in the apartment for three or four weeks. The government also offered expert testimony that the quantity and the packaging of the drugs, together with the drug paraphernalia and the weapons, indicated that the apartment was a drug distribution center, where cocaine was repackaged for street sale. At the close of the government's case, appellant moved for acquittal on the ground that the evidence showed only that he was a casual visitor to the apartment and not a participant in the drug operation. The court denied the motion. Morris then testified, denying that he had ever lived in the apartment or ever said that he lived there. He testified instead that he was visiting four friends who lived there and had been there only a few minutes when the police arrived. He said that he was not himself engaged in any drug trafficking or aware of the presence of the drugs in the apartment. He had left the cards there during a prior visit on his birthday. At the close of all the evidence, appellant renewed his motion for acquittal, which the court again denied. The jury convicted appellant of both charges, and he was sentenced to 130 months. II. DISCUSSION A. Standard of Review In this appeal, appellant challenges the sufficiency of the evidence to support each conviction. In such challenges, this court must defer to the jury's determination and affirm the conviction if “ 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' “ United States v. Long, 905 F.2d 1572, 1577 (D.C.Cir.) (quoting Jackson v. Virginia, 443 U.S. 307, 309, 99 S.Ct. 2781, 2783, 61 L.Ed.2d 560 (1979)), cert. denied, 498 U.S. 948, 111 S.Ct. 365, 112 L.Ed.2d 328 (1990). In our review, we must “view the evidence in the light most favorable to the government, allowing the government the benefit of all reasonable inferences that may be drawn from the evidence, and permitting the jury to determine the weight and credibility of the evidence.” United States v. Sutton, 801 F.2d 1346, 1358 (D.C.Cir.1986). B. Possession of the Drugs Appellant's first challenge is to the sufficiency of the evidence to sustain his conviction for possession of cocaine with intent to distribute. Possession, of course, can be either actual or constructive. Constructive possession requires evidence supporting the conclusion that the defendant had the ability to exercise knowing “dominion and control” over the items in question. United States v. Hernandez, 780 F.2d 113, 116 (D.C.Cir.1986). Mere proximity to the item at the time of seizure is not enough; but proximity coupled with “evidence of some other factor-- including connection with a gun, proof of motive, a gesture implying control, evasive conduct, or a statement indicating involvement in an

270 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 Writing Judicial Opinions 31 enterprise” is enough to sustain a guilty verdict. United States v. Gibbs, 904 F.2d 52, 56 (D.C.Cir.1990). A jury is entitled to infer that a person exercises constructive possession over items found in his home. United States v. Jenkins, 928 F.2d 1175, 1179 (D.C.Cir.1991). Thus, if there was sufficient evidence from which a juror could infer that Morris lived in the apartment where he was arrested, the jury could infer that he constructively possessed the drugs. The jury had the following evidence that Morris lived in the apartment: First, two officers testified that Morris said he lived there. Although Morris himself testified to the contrary, the jurors were permitted to credit the testimony of the officers. Jenkins, 928 F.2d at 1178. Moreover, Morris himself may have given their testimony extra credibility by his own contradictory information about where he did live at the time of the arrest. Second, Morris admitted that the two birthday cards found in the bedroom were his. That the cards were found inside the dresser drawer in another part of the house, rather than, say, left on a coffee table beside the defendant, strengthened the inference that Morris occupied the apartment on more than a drop-in basis. In United States v. Williams, 952 F.2d 418 (D.C.Cir.1991), cert. denied, --- U.S. ----, 113 S.Ct. 148, 121 L.Ed.2d 99, (1992), for example, this court found it relevant that defendant's possessions were found “not in the living room where [he] was arrested, but in [the] bedroom.” Id. at 420. Third, the officers found a dry cleaning ticket marked “E. Morris” in the hall closet. Morris's middle name is Eugene. Together these items of evidence support a reasonable inference that Morris lived in the apartment and, therefore, exercised constructive possession over its contents. The inference that a person who occupies an apartment has dominion and control over its contents applies even when that person shares the premises with others, Jenkins, 928 F.2d at 1179, but it is particularly strong when the jury can reasonably conclude that he is the sole occupant of the premises. Appellant testified that not he but “four friends” lived in the apartment. Neither appellant nor the government claimed that he was the fifth occupant. Other than appellant's testimony, however, which the jury was permitted to disbelieve, there was no evidence that anyone other than appellant lived in the apartment, and certainly no one else was present when the arrest was made and the drugs seized. Thus, there was ample evidence from which the jury could infer that Morris lived alone in the apartment and exercised constructive possession over its contents. There was also evidence aplenty from which a jury could infer intent to distribute. This intent can be inferred from a combination of suspicious factors. Gibbs, 904 F.2d at 57. The presence of the paraphernalia--razors and drug packaging materials--was evidence of such an intent, United States v. Dunn, 846 F.2d 761, 764 (D.C.Cir.1988) (citing United States v. Castellanos, 731 F.2d 979, 985 (D.C.Cir.1984)), as

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was the presence of the guns, United States v. Bruce, 939 F.2d 1053, 1056 n. 2 (D.C.Cir.1991) (citing Dunn, 846 F.2d at 764). Additionally, a government expert testified that the quantity and packaging of the drugs found in the apartment indicated that they were intended for street sale. Because there was sufficient evidence both of appellant's possession of the drugs and of his intent to distribute them, we affirm his conviction for the possession offense. C. Guns Used or Carried in Relation to the Trafficking Offense1 Appellant's second challenge is to the sufficiency of the evidence to support his conviction for using or carrying a gun in relation to a drug trafficking offense. Morris was convicted under a statute that makes it a crime to “use[ ] or carr[y]” a firearm “during and in relation to any ... drug trafficking crime....” 18 U.S.C. § 924(c). Case law from this and other circuits provides guidance in determining when someone “uses or carries” a gun in relation to a drug trafficking offense. The first principle is clear: Mere possession of a gun even by a drug trafficker does not violate the statute. As we observed in United States v. Bruce, 939 F.2d at 1053, when Congress wishes to criminalize the possession of a firearm, it knows how to do so. In Bruce, this court recognized the analytical difficulty in distinguishing those cases in which someone merely possesses a gun with the intent to use it in a future drug trafficking crime, such as an intended sale--which does not violate § 924(c)--from those cases in which someone actually uses the gun in relation to the trafficking crime, such as a current sale or to protect current possession in anticipation of a future sale--which does violate § 924(c). Id. Apart from the basic requirement that “use” constitute more than simple possession, (United States v. Long, 905 F.2d 1572, 1577 (D.C.Cir.1990)), we have construed the term as broad enough to encompass any case in which the gun facilitated or had a role in the trafficking offense. United States v. Harris, 959 F.2d 246, 261-62 (D.C.Cir.1992) (using guns as medium of exchange violated the statute). Put another way, we ask whether the gun was “an integral part” of the drug trafficking operation in question. United States v. Anderson, 881 F.2d 1128, 1141 (D.C.Cir.1989). “Use” does not require that the defendant fire the gun or even brandish it. United States v. Evans, 888 F.2d 891, 896 (D.C.Cir.1989) (citing United States v. Matra, 841 F.2d 837, 841-43 (9th Cir.1988); United States v. Mason, 658 F.2d 1263, 1270-71 (9th Cir.1981); United States v. Moore, 580 F.2d 360, 362 (9th Cir.), cert. denied, 439 U.S. 970, 99 S.Ct. 463, 58 L.Ed.2d 430 (1978)), cert. denied sub nom. Curren v. United States, 494 U.S. 1019, 110 S.Ct. 1325, 108 L.Ed.2d 500 (1990). This court has identified a number of factors to aid in determining whether guns found at the scene of a drug trafficking offense were in fact “used” in relation to that offense. We discuss only some of them here, recognizing that courts have identified and will identify others.

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First, the defendant's possession of the gun is an important factor. Generally speaking, it would be difficult to “use” a gun without exercising dominion and control over it. Possession, of course, encompasses joint, as well as constructive possession. United States v. Gibbs, 904 F.2d 52, 57 (D.C.Cir.1990). Second, the court considers the accessibility of the gun to the defendant. A gun kept close at hand is more likely being used for protection than a gun packed away in a hard- to-reach spot. Cf. United States v. Jefferson, 974 F.2d 201, 207 (D.C.Cir.1992) (gun placed outside remained sufficiently accessible to support inference that it was “used” for purposes of 924(c)). The proximity of the gun to the drugs is a third factor which, however, may cut either way, depending upon the particular facts. In Bruce, for example, the gun and the drugs were both found in the pocket of a raincoat hanging in a closet. We concluded that the gun appeared to be intended for use only at the time of a future distribution. Id. at 1055. In other cases, particularly those involving a drug distribution center, the gun's proximity to the drugs or to other indicia of a trafficking operation may support the inference that the gun was an integral part of the operation. See, e.g., Anderson, 881 F.2d at 1141; see also Jefferson, supra, 974 F.2d at 207 (where defendant had admitted to past use of gun, its proximity to drugs supported inference that it was used to protect drugs); United States v. Williams, 952 F.2d 418, 421 (D.C.Cir.1991) (in premises used for drug distribution, proximity of guns to drugs and drug paraphernalia supports conviction under 924(c)). See also United States v. Hadfield, 918 F.2d 987, 988 (1st Cir.1990) (location of operable firearm “in close proximity to a room or rooms in which drug distribution, processing, or storage occurs” supports inference of its use in connection with the predicate offense), cert. denied, --- U.S. ----, 111 S.Ct. 2062, 114 L.Ed.2d 466 (1991). The permissible inferences that can be drawn from the proximity of the gun to the drugs, in the final analysis, depend on the facts of each case. A fourth factor is whether the gun is loaded. See Anderson, 881 F.2d at 1141; Dunn, 846 F.2d at 764. Although the brandishing or display of even an unloaded gun can have a powerful deterrent effect and therefore play a role in protecting drugs and drug proceeds, the fact that a gun is loaded strengthens the inference that it is in actual use. Fifth, the number and type of guns may also be relevant to the question of their “use.” Jefferson, supra, 974 F.2d at 207; Williams, 952 F.2d at 421. As to the type, we have found some relevant distinctions between an ornamental, but operative, belt-buckle derringer, which we deemed an unlikely arm to protect a crack house, Bruce, 939 F.2d at 1055, and a sawed-off shotgun, which we recognized as a “formidable firearm” for the same purpose. Jefferson, supra, 974 F.2d at 208. As to the number, we have found some significance in the existence of an “arsenal” of weapons, see Williams, 952 F.2d at 421, while recognizing that the use of a single gun can violate the statute. See Jefferson, supra, 974 F.2d at 207.

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In general, the presence of several guns throughout the premises strengthens the inference that they are intended to protect the stash. The conclusion that the gun was actually used in relation to the trafficking offense can also be buttressed by an expert identifying the indicia of a drug trafficking operation--including, but not limited to, the quantity, composition and packaging of the drugs, the presence of drug paraphernalia, weapons, and large amounts of cash, the location of the premises in an area known for such activity, and the well-nigh universal use of guns to protect such operations. See United States v. Williams, 952 F.2d 418, 421 (D.C.Cir.1991); United States v. Jenkins, 928 F.2d 1175, 1179 (D.C.Cir.1991); United States v. Anderson, 881 F.2d 1128, 1141 (D.C.Cir.1989); United States v. Dunn, 846 F.2d 761, 764 (D.C.Cir.1988). Finally, we have considered relevant the defendant's recent use of the gun in relation to drug trafficking. Jefferson, supra, 974 F.2d at 207; United States v. Laing, 889 F.2d 281, 286 (D.C.Cir.1986), cert. denied, 494 U.S. 1008, 110 S.Ct. 1306, 108 L.Ed.2d 482 (1990); Evans, 888 F.2d at 895, 896. In determining specifically whether a gun was used to protect the stash of drugs intended for distribution, as opposed to their actual distribution, some cases have focused on the open display of the gun as a deterrent to poachers. See, e.g., United States v. Williams, 923 F.2d 1397 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2033, 114 L.Ed.2d 118 (1991). This is not to say, however, that a gun that is within reach, though out of sight, does not also strongly suggest its intended use for protection of the drugs. See, e.g., United States v. Meggett, 875 F.2d 24, 29 (2d Cir.1989) (“Possession of a gun, even if it is concealed, constitutes use if such possession is an integral part of the predicate offense and facilitates the commission of that offense.”), cert. denied sub nom. Bradley v. United States, 493 U.S. 858, 110 S.Ct. 166, 107 L.Ed.2d 123 (1989); United States v. Stewart, 779 F.2d 538, 540 (9th Cir.1985) (guns “embolden[ ] an actor who ha[s] the opportunity or ability to display or discharge the weapon ... whether or not such display or discharge in fact occur[s]”), cert. denied, 484 U.S. 867, 108 S.Ct. 192, 98 L.Ed.2d 144 (1987). Against this backdrop, we now consider the facts of this case, in light of the factors discussed, and, of course, also in the light most favorable to the government, United States v. Sutton, 801 F.2d 1346, 1358 (D.C.Cir.1986). The government claimed that Morris was “using” the three guns to protect the stash of drugs. It is well established that “when guns are present in order to protect contraband they may be deemed to be used in relation to the underlying felony [possession with intent to distribute].” Evans, 888 F.2d at 896. From the evidence in this case, we conclude that a jury could reasonably infer that Morris was using these firearms to protect the drugs in the apartment intended for future distribution. First, there was plentiful evidence that Morris occupied the apartment and exercised constructive possession over its contents. Second, two of

274 ■ NFJE Tenth Annual Judicial Symposium ■ July 2014 Writing Judicial Opinions 35 the guns were readily accessible to him, both within easy reach under the cushions of the couch on which he sat. He thus easily fulfilled two of the three factors generally looked to to prove possession of a firearm in § 924(c) cases. See Long, 905 F.2d at 1579 (possession most commonly shown by proximity to the firearm, possessory interest in the firearm, or dominion and control over the premises on which the firearm was located). The positioning of the two guns in the couch also placed them near the door through which an intruder might be expected to enter the apartment. The third gun, which was in a nightstand drawer in the bedroom, was closer to the drugs, which were in a duct in the bedroom ceiling; the bedroom was the room in which jurors could infer that appellant slept. Jurors could thus reasonably infer that all three guns were strategically placed throughout the apartment in order to protect the drugs that appellant possessed. All three guns were loaded and fully operable. Two were .22 caliber pistols, and one was a .38 caliber pistol. While three pistols may not an arsenal make, they are not strangers to the drug trade, see Dunn, 846 F.2d at 764, and together they generously support an inference that their presence was geared to protecting the drugs stored in the apartment. Finally, the government offered expert testimony that the apartment was a drug packaging and distribution center. The government's expert testified that the quantity and packaging of the drugs indicated that they were intended for street sale; that drug dealers frequently “stash” their drugs in ceiling air vents because drug-sniffing dogs won't detect them there; and that someone who was involved in this kind of operation would typically use a gun to protect himself from “stick-up boys,” competing dealers, or even from his street salesmen. Because this evidence, taken as a whole, would certainly permit a reasonable juror to infer that Morris used the guns in relation to the possession with intent to distribute offense, we affirm his conviction under § 924(c).

UNITED STATES V. MORRIS, REWRITTEN

A jury convicted the defendant of possession of cocaine with intent to sell it, and of using or carrying a firearm during and in relation to a drug offense. The judge sentenced him to 130 months in prison. Police had a warrant to search a one-bedroom apartment. Upon entering they found the defendant sitting on a small couch in the living room. The search revealed drugs, cash, and drug paraphernalia, and also three pistols—two under the cushions of the couch and the third in a nightstand in the bedroom. The officers testified that the defendant had told them he’d been living in the apartment for three or four weeks, although at his trial he testified that he had never lived there and was

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just visiting friends and in fact he had been there for only a few minutes when the police arrived and had known nothing about drugs or drug trafficking in the apartment. The defendant challenges the sufficiency of the evidence on both charges. So far as possession of the drugs in concerned, the testimony of the police that the defendant had told them he lived in the apartment was corroborated by two birthday cards found in the bedroom—for the defendant’s name was on the envelope of one and the other was to a “son” and signed “Mr. and Mrs. B.G. Morris”—and by a laundry ticket in the name of “E. Morris”; “Eugene” is the defendant’s middle name. And there was no indication that anyone else lived in the apartment. The jury was on sound ground in inferring that the drugs in the apartment were indeed the defendant’s, while the presence of drug paraphernalia, including materials for cutting and packaging drugs, supported the further inference that he intended the drugs for distribution rather than personal consumption (or solely personal consumption). And if that wasn’t enough (it was), a government expert testified that the quantity and packaging of the drugs indicated that they were intended for sale. The gun conviction was for violating a statute that punishes “a person [who] uses or carries a firearm” “during and in relation to a...drug trafficking crime.” 18 U.S.C. § 924(c). The term “use” is broad enough to cover any way in which a gun facilitated the trafficking offense. United States v. Harris, 959 F.2d 246, 261–62 (D.C.Cir. 1992). The defendant need not have fired or even brandished it. United States v. Evans, 888 F.2d 891, 896 (D.C.Cir. 1989); United States v. Matra, 841 F.2d 837, 841-43 (9th Cir.1988). Accessibility is of course important. United States v. Jefferson, 974 F.2d 201, 207 (D.C.Cir. 1992). If the gun is loaded, this strengthens the inference that it is being “used” by the drug trafficker in relation to drug trafficking, United States v. Anderson, 881 F.2d 1128, 1141 (D.C.Cir. 1989); likewise if there is more than one gun. United States v. Williams, 952 F.2d 418, 421 (D.C. Cir. 1991). The government claimed that the defendant was “using” all three guns to protect his drug trafficking. Two of them were immediately accessible to him beneath the cushions of the couch on which he was found sitting, which presumably was where he spent most of his time during the day; the third was immediately accessible to him when he was in bed. All three guns were loaded and in working condition. And the government’s expert testified plausibly that a drug dealer would typically possess a gun in order to protect himself from “stick-up boys,” competing dealers, or even from his own street salesmen. The evidence of use during and in relation to drug trafficking was sufficient. AFFIRMED.

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