4. Biased judges — For elections & personal lawsuits

Uncontroversially, judicial bias violates due process. What is the measure: actual bias, the probability of bias, or the appearance of bias? The debate on the U.S. Supreme Court case Caperton v. A.T. Massey Coal Co. (see http://tinyurl.com/djyezy) focuses on appearance by default, not cogency. Justice Stevens seems convinced the appearance of bias denies a party due process, but surely it deprives a party only of the appearance of due process. Appearance of bias concerns actual due process only as evidence of actual bias. Caperton's attorney Ted Olson argues bias is present according to the perception of the informed reasonable man. But if the evidence for bias rationally convinces, then the preponderance of evidence supports actual bias. 

Why does Attorney Olson convolute his argument by introducing the reasonable man's opinions? Olson's circumlocution allows him to show the mandatory respect for judges by not accusing any of them of bias without conclusive evidence.

Olson probably didn't intend to recommend finding probability of bias in the individual case, and, when referring to the reasonable person acquainted with all the facts, he didn't mean literally all of them. The facts that the reasonable person is to judge from are probably a small subset of all facts: just those facts bearing on the biasing event. In Caperton v. Massey, "all the facts" means the campaign contribution, who gave it, the circumstances of its gift and receipt. Very different from "all" facts, the difference showing that the rational man is envisioned approving a standard instead of a specific case outcome. There lies the problem: the question of the standard for bias remains unanswered because of the question's incoherence. Whether a biasing event actually changed a judge's vote admits no general answer. The "rational man" would be some other kind of man if he consented to determine whether a biasing event is (in general) "large enough" to change a decision. Even the 3-million dollar contributor in Caperton v. Massey didn't necessarily envision that the judge would show personal loyalty during his twelve-year term of office. More likely, the contribution elected a candidate who votes the contributor's way because the candidate's judicial and political views conform the law to the contributor's interests. The contributor's ability to control outcome ideologically isn't termed "judicial bias."

The reversible-error rule's workings contrast with the proposed mandatory-recusal rule, highlighting the latter's infirmity. To decide whether error is reversible, the appellate court puts itself in the place of the finder of fact and asks whether the error would cause a different outcome. The appellate court cannot, analogously, evaluate the effect of a bias because in the one they are assessing from the standpoint of a rational judge, in the other a biased judge. Rationality commands a unique judgment, but bias knows no generic magnitude.

Reactions to the bias question reflect ideology. Conservative justices see the impossibility of line drawing as an absolute barrier to intervention and cling to the unbiased-judge myth. Justice Scalia thinks even 3-million dollars lacks biasing power. Liberals, on the other hand, often propose eliminating elective judgeships. But direct election of judges only—beneficially—makes bias transparent. Appointment substitutes the appointing official—whose wishes are subject to the usual sources of political influence—for the campaign contributor. As framed by the liberals, the goal is avoiding impropriety's appearance, and appointment serves. Another liberal proposal, compulsory recusal based on large contributions—$1,500 proposed in California—may create more due-process problems than it solves. The proposal would perversely foster manipulation by contribution to adverse judges.

Assessing whether a judge is biased depends on, literally, all the various facts bearing on the judge's decision, including personal facts of the judge's correlated predispositions. Fact finding is outside the ordinary competence of the appellate courts. The trial courts are uniquely competent to deal with judicial bias for another reason: the outcome of a biased decision should be subject to recovery of damages, rather than reversal of the underlying case. 

Where the underlying prevailing party was only the passive beneficiary of bias, reversing the decision penalizes the wrong person; whether the judge was subject to extrinsic influence isn't the prevailing litigant's concern. Coping with judicial bias requires partly abrogating judicial immunity to allow personal suits against judges for biased decisions.

17.1. Societal implications of ego-depletion theory and construal-level theory repudiates elections for judges.