Unfair (59 page)

 

John Roberts was sitting on:
Biographies of Current Justices of the Supreme Court, Supreme Court of the United States,
http://www.supremecourt.gov/​about/​biographies.aspx
.

It had been more than a decade:
Richard W. Stevenson, “President Names Roberts as Choice for Chief Justice,”
New York Times
, September 6, 2005,
http://www.nytimes.com/​2005/09​/06/politics/politicsspecial1​/06confrim.html​?pagewanted=all
. 157 There were now two vacancies: Stevenson, “President Names Roberts.”

Standing in his way:
United States Senate Committee on the Judiciary, Nomination of John G. Roberts,
http://www.judiciary.senate.gov/​meetings/nomination-​of-john-g-roberts
.

But the landscape had changed:
Nina Totenberg, “Robert Bork's Supreme Court Nomination ‘Changed Everything, Maybe Forever,' ” NPR, March 19 2012,
http://www.npr.org/​blogs/itsallpolitics​/2012/12/19/​167645600/robert-borks-supreme​-court-nomination-changed-everything-maybe-forever
.

Like Roberts, Bork had:
Totenberg, “Robert Bork's Supreme Court Nomination.”

And despite the efforts:
Totenberg, “Robert Bork's Supreme Court Nomination.”

But a series of missteps:
Totenberg, “Robert Bork's Supreme Court Nomination.”

In the end, fifty-eight senators:
Totenberg, “Robert Bork's Supreme Court Nomination.”

Where Bork had appeared humorless:
Totenberg, “Robert Bork's Supreme Court Nomination”; Kenneth Jost, “Roberts' Confirmation Hearings Conclude,” NPR, September 15, 2005,
http://www.npr.org/​templates/story/​story.php?storyId=4850135
.

Where Bork had weighed in:
Confirmation Hearing on the Nomination of Robert H. Bork to be Associate Justice of the United States, Before the Comm. on the Judiciary
, 100th Cong. (1987); Totenberg, “Robert Bork's Supreme Court Nomination”; Jost, “Roberts' Confirmation Hearings Conclude.”

Arguably the savviest move:
Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States, Before the Comm. on the Judiciary
, 109th Cong. (2005).

Roberts certainly wasn't the first:
In an
American Bar Association Journal
survey conducted shortly before the hearings, more than 50 percent of Americans voiced serious concern about “judicial activism.” American Bar Association, “Most Americans See ‘Judicial Activism' Crisis,”
WND
, September 20, 2005,
http://www.​wnd.com/​2005/09/32620/
; Robert Schwartz, “Like They See 'Em,”
New York Times
, October 6, 2005,
http://www.nytimes.com/​2009/07/12/​weekinreview/12weber.html?pagewanted=all
. And during the proceedings, then-Senator Sam Brownback (R.-Kan.) rued the fact that “we've gotten to a point today where in many respects the judiciary is the most active policy player on the field.”
Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States, Before the Comm. on the Judiciary
, 109th Cong. (2005). Senator Jeff Sessions (R.-Ala.) offered a similar sentiment, speaking of the desperate need for “a fair and unbiased umpire, one who calls the game according to the rules and does so competently and honestly every day.”
Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States, Before the Comm. on the Judiciary
, 109th Cong. (2005). The
New York Daily News
lauded the analogy, explaining that it showed that Roberts's “work will deal with legal opinions, not his personal opinions.” “The Next Chief Justice,”
New York Daily News
, September 16, 2005. Here, in Roberts's model, was a counter to the unelected “activist,” legislating from the bench. Schwartz, “Like They See 'Em.”

Good judges call:
Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States, Before the Comm. on the Judiciary
, 109th Cong. (2005).

They don't pitch:
Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States, Before the Comm. on the Judiciary
, 109th Cong. (2005).

Bad judges, by contrast:
Schwartz, “Like They See 'Em.”

They are unelected activists:
Schwartz, “Like They See 'Em.”

In setting out the two:
Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States, Before the Comm. on the Judiciary
, 109th Cong. (2005); Jost, “Roberts' Confirmation Hearings Conclude.”

More important, he engendered a world:
Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. to be an Associate Justice of the Supreme Court of the United States, Before the Comm. on the Judiciary
, 109th Cong. 14 (2006);
Confirmation Hearing on the Nomination of Hon. Sonia Sotomayor, to be an Associate Justice of the Supreme Court of the United States, Before the Comm. on the Judiciary
, 109th Cong. 57–59 (2009);
Confirmation Hearing on the Nomination of Elena Kagan to be an Associate Justice of the Supreme Court of the United States, Before the Comm. on the Judiciary
, 111th Cong. (2010).

Justice Sotomayor's path through:
Sonia Sotomayor, “A Latina Judge's Voice,”
Berkeley La Raza Law Journal
13 (2002): 87–92.

In Sotomayor's estimation:
Sotomayor, “A Latina Judge's Voice,” 92. This perspective aligned with President Barack Obama's statement, during the search to replace retiring justice David Souter on the bench, that “empathy” was a key trait that he looked for in a Supreme Court nominee. “Failure of Empathy and Justice,”
New York Times
, March 31, 2011,
http://www.nytimes.com/​2011/04/01/opinion/01fri2.html
. And it is no surprise that the president also came under fire, as a result: the empathetic justice is, in many ways, the opposite of the cold, steel-eyed umpire justice.

As the Republican senator:
Bruce Weber, “Umpires v. Judges,”
New York Times
, July 11, 2009,
http://www.nytimes.com/​2009/07/12/​weekinreview/​12weber.html?pagewanted=all&_r=0
.

While a few Democratic senators criticized:
Tony Mauro and David Ingram, “The Sotomayor Confirmation Hearings: Sotomayor Pledges ‘Fidelity to the Law,' ”
National Law Journal
, July 13, 2009,
http://www.​law.​com/​jsp/​article.​jsp?​id=1202432212396&The_​Sotomayor_​Confirmation_​Hearings_​Sotomayor_​Pledges_​Fidelity_​to_​the_​Law&slreturn=20120912191112
. At her hearing, Judge Sotomayor explained that “judges can't rely on what's in their heart” and that her “philosophy of judging [is] applying the law to the facts at hand.” Her responses eventually prompted Senator Lindsey Graham of South Carolina to remark, “I listen to you today; I think I'm listening to Judge Roberts.” Peter Baker and Neil A. Lewis, “Republicans Press Judge About Bias,”
New York Times
, July 14, 2009,
http://www.nytimes.com/​2009/07/​15/us/politics​/15confirm.html
.

During his confirmation hearings:
The conceptions of biased and unbiased judges embodied in the umpire analogy was never intended to be just a description of the world, but rather as a tool to change it. Adam Benforado, “Color Commentators of the Bench,”
Florida State University Law Review
38 (2010–2011): 466; Aaron S.J. Zelinsky, “The Justice as Commissioner: Benching the Judge-Umpire Analogy,”
Yale Law Journal
199 (2010): 117,
http://www.yalelawjournal.org/​the-yale-law-​journal-pocket-part/supreme-court​/the-justice-as-commissioner​:-benching-the-judge%25
.

There was a war over:
Benforado, “Color Commentators of the Bench,” 466.

Establishing the umpire as an ideal:
Benforado, “Color Commentators of the Bench,” 466.

There was no need:
Benforado, “Color Commentators of the Bench,” 466.

And it would limit others:
Benforado, “Color Commentators of the Bench,” 466.

Indeed, a majority of Americans:
American Bar Association, “ ‘Judicial Activism' Crisis”; Schwartz, “Like They See 'Em”; Adam Liptak and Allison Kopicki, “Approval Ratings for Justices Hits Just 44% in New Poll,”
New York Times
, June 7, 2012,
http://www.nytimes.com/​2012/06/08/us/politics​/44-percent-of-americans-approve-of-supreme-court-in-new-poll.html​?_r=1&hp&​pagewanted=print
.

Likewise, while 45 percent of conservative:
“Supreme Court's Favorable Rating Still at Historical Low,”
Pew Research Center for the People and the Press
, March 25, 2013,
http://www.people-press.org/​2013/03​/25/supreme-courts-favorable​-rating-still-at-historic-low/
.

A prime culprit appears to be:
Robert P. Vallone, Lee Ross, and Mark R. Lepper, “The Hostile Media Phenomenon: Biased Perception and Perceptions of Media Bias in Coverage of the Beirut Massacre,”
Journal of Personality and Social Psychology
49, no. 3 (1985): 577–85.

In one of the most famous demonstrations:
Vallone, Ross, and Lepper, “The Hostile Media Phenomenon,” 580.

Given the impact of cultural cognition:
Vallone, Ross, and Lepper, “The Hostile Media Phenomenon,” 581.

What
is
surprising is that:
Vallone, Ross, and Lepper, “The Hostile Media Phenomenon,” 581. In sports, the same dynamic may give rise to the strange—but not unusual—situation where opposing fans at the end of a game agree on nothing, except that the refs were terrible.

In line with Roberts's model:
Take the general directive that a “judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment.” “Code of Conduct for United States Judges,” United States Courts, last revised March 20, 2014,
http://www.uscourts.gov/​RulesAndPolicies/CodesOfConduct​/CodeConductUnitedStatesJudges.aspx
. This implies that a judge is fully aware of when, say, his identity as a Republican, Harvard-educated, white male or a member of the Catholic church influences his decision-making and can simply decide not to allow it to have any effect. Being impartial, in this view, is a choice.

That's why we have rules:
“Code of Conduct for United States Judges”; “Judicial Conference Regulations—Gifts,” United States Courts,
http://www.uscourts.gov/​RulesAndPolicies/​CodesOfConduct/JudicialConferenceRegulationsGifts.aspx
. We assume that by focusing on “bribes” and close personal ties to litigants and controversies, our rules to guard against bias are on the right track, but may just not go far enough. According to the Code of Conduct for United States Judges, a judge should not hold office in a political organization or solicit funds for a candidate. “Code of Conduct for United States Judges.” Likewise, a judge should not receive gifts from those coming before the court. And a judge should not secretly meet with one side in a case and exclude the other. “Judicial Conference Regulations—Gifts.” These prohibitions all make intuitive sense. Seemingly, the only problem is that they don't apply to all judges—in particular, Supreme Court Justices and state and local judges—and leave too much discretion to individual judges.

The evidence that members of the judiciary regularly and consciously exploit the lacunas in our rules at the expense of impartiality is all too clear to many of us. On the right side of the bench, the wife of Justice Clarence Thomas founded a conservative legal organization dedicated to opposing President Obama's policy agenda and Thomas attended a private political retreat set up by Charles Koch, the billionaire conservative who has made no secret of his goal to undermine the Obama administration, yet Thomas has failed to recuse himself in key cases in which the president's policies have been challenged. Eric Lichtblau, “Thomas Cites Failure to
Disclose Wife's Job,”
New York Times
, January 24, 2011,
http://www.nytimes.com/​2011/01/25​/us/politics​/25thomas.html
. Similarly, Justice Scalia robed up for a challenge to Vice President Dick Cheney's energy task force despite going on a duckhunting trip with the vice president less than a month after the Court elected to hear the case. Eric Lichtblau, “Advocacy Group Says Justices May Have Conflict in Campaign Finance Cases,”
New York Times
, January 19, 2011,
http://www.nytimes.com/​2011/01/20​/us/politics​/20koch.html​?_r=1&emc=eta1
. On the left side of the bench, Justice Ginsburg cofounded the Women's Rights Project at the ACLU, but ruled on many cases related to woman's rights. Sandra Pullman, “Ginsburg and WRP Staff,” American Civil Liberties Union, March 7, 2006,
http://www.aclu.org/​womens-rights/​tribute-legacy-ruth-bader​-ginsburg-and-wrp-staff
. And Justice Kagan was “a cheerleader for ObamaCare” as solicitor general, in the words of S.A. Miller at the
New York Post
, but didn't step “aside from the legal challenge to it” once she became a justice. S.A. Miller, “Kagan O'Care Bias Feared,”
New York Post
, November 16, 2011,
http://www.nypost.com/​p/news/national/​kagan_care_bias_feared_rCgJr9pt6EoKnTRwHAXTeO