Response to Cassandra Burke Robertson, Judicial Impartiality in a Partisan Era
In her article, Judicial Impartiality in a Partisan Era, Professor Cassandra Burke Robertson suggests that even if judges make a conscious effort not to decide cases based on partisan political identification, they may unconsciously bring their partisan views to bear. Doing so may be unavoidable. Professor Robertson sees it as a problem worth redressing that judges may be influenced—or appear to be influenced—by “political bias” in ways unseen by observers and unperceived by judges themselves. The problem involves the nature of judging and the legitimacy of courts in a highly partisan age.
The most significant response, one that Professor Robertson does not advance, would be to change how judges are selected. We are not persuaded that such a radical change or Professor Robertson’s more minor suggestions are needed, however. While we agree that judges, as humans, are subject to all kinds of unconscious thought processes, which likely include partisan identification, we are less disposed than Professor Robertson to see this as a problem worth redressing. We acknowledge social science teachings about unconscious biases, including pernicious ones such as unconscious racial biases. But we tend to think that judges’ humanity, including their unconscious irrationalities and other human frailties, should simply be accepted, and that we ought to focus on whether judges’ conscious decision-making processes, including their express thought processes, adhere to professional expectations. If so, we need not worry too much about what lies below the surface. Read More.