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By Robert A. Vella

Earlier this month, in an editorial titled This Case reveals why it is Politics, and not Ethics, which determine Judicial outcomes, I prefaced my examination of a civil liability case involving a huge corporation which was greatly impacted by the unexpected death of U.S. Supreme Court justice Antonin Scalia:

Those inside the legal profession continue to assert that America’s judicial system is primarily administered through a structure of ethical codes and standards designed to facilitate unbiased interpretations of the law – high justice, in other words.  They claim that political and other forms of bias by judges are the exception and not the rule.  Legal scholars repeatedly point towards the U.S. Supreme Court as an illustrative example, where precedent, consistency, and independence mark the attributes of judicial review.

I have no doubt that this is the goal of America’s judicial system, and I have no doubt that the many judges, lawyers, and scholars within it believe they are performing up to those lofty expectations.  However, they are first and foremost human beings, and as such cannot be completely objective in all cases and at all times.  Subjective thinking must occur;  otherwise, they wouldn’t be human.

And, when the nation is as culturally and politically polarized as it is now, America’s judicial system must suffer from increased instances of subjective bias.

The “subjective bias” I spoke of is closely associated with political partisanship.  This view is hardly unique nor insightful.  People across the political and cultural spectrum are increasingly distrustful of large social institutions including America’s once-revered judicial system.  That growing public perception, which poses an existential threat to the prevailing establishment, is now rattling the nerves of officials even in the highest and most protected institutional positions.  For example, U.S. Supreme Court Chief Justice John Roberts – who greatly empowered corporations over the democratic interests of ordinary citizens with his court’s Citizens United and Hobby Lobby decisions (among others) – recently responded to the concern over partisanship.  From Daily KosSCOTUS Chief Justice John Roberts criticized partisan confirmation process before Scalia’s death:

It was not long ago that qualified nominees coasted onto the court, Chief Justice Roberts said last month. In 1986, Justice Scalia was confirmed by a vote of 98 to 0. In 1993, Justice Ruth Bader Ginsburg was confirmed by a vote of 96 to 3.

These days, Chief Justice Roberts said, “the process is not functioning very well.” […]

“Look at my more recent colleagues, all extremely well qualified for the court,” Chief Justice Roberts said, “and the votes were, I think, strictly on party lines for the last three of them, or close to it, and that doesn’t make any sense. That suggests to me that the process is being used for something other than ensuring the qualifications of the nominees.” […]

“When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms,” he said. “If the Democrats and Republicans have been fighting so fiercely about whether you’re going to be confirmed, it’s natural for some member of the public to think, well, you must be identified in a particular way as a result of that process.”

“We don’t work as Democrats or Republicans,” the chief justice said, “and I think it’s a very unfortunate impression the public might get from the confirmation process.”

That public impression isn’t simply the result of partisanship in the judicial nominee confirmation process, Mr. Chief Justice.  That extreme partisanship you rightly condemn in the nation’s legislative and executive branches, has infected the nation’s judicial branch as well – especially so since you have sat upon its highest perch.  Perhaps it is your ideology that is problematic, and the ideologies of your fellow conservatives on the court, which you refuse to see as equatable to political partisanship.

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