Judicial Bias

Dean Lawrence R. Velvel

On Wednesday August 23rd The New York Times printed an op ed piece by a University of Wisconsin professor.  I shall call her X.  Many of this blog's readers doubtlessly read the Times and saw X's piece.  It was given pride of place on the Times' page of columns, and was provocatively entitled, "A Law Unto Herself".

The piece viciously attached Judge Anna Diggs Taylor for ruling that Bush's previously secret but now admitted NSA electronic surveillance of gazillions of phone calls is unconstitutional.  The piece was not only a vicious attack on Judge Diggs, it was also deeply wrong (a subject I shall return to subsequently).  It was so wrong that it was irresponsible of the Times to print it.

One imagines that the Times must get dozens, maybe scores -- maybe, who knows, hundreds -- of proposed op ed pieces that it doesn't print each week, just like it must get hundreds of letters that it doesn't print.  Assuming, as is so likely, that the Times gets lots of proposed op ed pieces that it doesn't print, one is at a loss to understand why it ran, and gave pride of place, to X's screed.  Did the Times not have constitutional and statutory experts vet her article for professional accuracy and professional persuasiveness before running it?  Did it not bother to have her piece vetted because X herself is a constitutional law professor?   Did the Times (and experts?) feel it should be run because it is the product (one might uncharitably call it the ravings) of a conservative to reactionary point of view , so that the Times could not be accused of one sidedness?  Did the Times run her piece because X (I've since learned) is a major league blogger -- a major figure in the blogging community (where, I gather, opinions on her politics vary, although I read that she does support Bush's war in Iraq).  Who knows why the Times carried X's irresponsible op-ed column?  If I had to make a bet, it would be that several, maybe even all, of the foregoing possibilities played a role.

The Times, of course, regularly offsets the fact that it is a national treasure -- as I personally believe and as long-time Timesman Ira Berkow recently said at our law school -- by doing things of enormous irresponsibility (like possibly electing George Bush to a second term by not revealing its knowledge of his electronic surveillance before the 2004 election, if it did learn of the surveillance before that election -- which it has now refused to say for over one and one half years).  (A list of irresponsible Times' actions has been discussed here in prior posts.)  But that the Times occasionally does irresponsible things does not justify doing more of them, and one is amazed that it irresponsibly printed, let alone gave pride of place, to X's piece.  X, one may say, is no George Kennan, if you understand the allusion.

Yet, paradoxically, X did say one thing far better than this blogger has ever been able to say it.  She captured one phenomenon about judges so perfectly that I can do no better than quote what she said, which is done below.  From this writer's perspective, her statement was fortuitously timed because it so beautifully captured a point that I was on the verge of writing about, was about to start writing about the very Wednesday her piece appeared, although I write about it from a directly opposite point of view.  Here is what X said:

So often, we've heard complaints about "activist" judges. They're suspected of deciding what
outcome they want, based on their own personal or ideological preferences, and then writing
a legalistic, neutral-sounding opinion to cover up what they've done. That carefully composed
legal opinion makes it somewhat hard for a judge's critics to convince people - especially
anyone who likes the outcome - that the judge did not decide the case according to an
unbiased legal method of analysis.

There you have it:  briefly, pithily, and in summary of the wisdom developed in the 20th Century, starting early in that century with the so-called legal realists who exposed, exploded and ridiculed judges' claims to some sort of politically and economically neutral omniscience.   Judges are neither neutral nor omniscient.

A judge, as one wag once put it, is a lawyer who knew a senator (although one also has to be a lawyer who holds politically approved views).  Often judges are not particularly competent.  They are deeply biased in favor of views they favor, are quite often intolerant of other views, and evade the central point or points of a matter in order to arrive at preordained decisions they wish to arrive at.  But to hide their bias, their avoidance of centrality, and the so-often preordained nature of their decisions, they speak in complex language and logic invented by the law and lawyers to hide what is being done.  The language and logic are often dull to the point of causing mild encephalitis.  They give the appearance of being neutral, and they make their users sound neutral, when the truth is to the contrary.

This posting represents the personal views of Lawrence R. Velvel.  If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu.  Your response may be posted on the blog if you have no objection; please tell me if you do object.

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Harvard Square Commentary, August 28, 2006