Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
15 July 2009

Spare us from the US Bloviators

I am not a great fan of the way in which US Supreme Court Justices are appointed. The president nominates a judge – preferably one with a thin record that cannot be attacked by anyone – and the judge is then grilled by a committee of Senators before he or she is confirmed by the US Senate. In the process, the judge tries to say as little as possible while the Senators try to score political points to impress TV viewers back home and to gratify their already over-inflated ego’s.

Ironically, because the process is avowedly party political, the judge has to pretend that he or she has no political views, no judicial philosophy, no life experience, that could in any way influence the decisions he or she will make once appointed to the highest court of the most powerful nation in the world. We learn very little in the process – except whether the nominee is clever enough and was coached well enough to outwit the bloviating Senators with their blow-dried hair.

It all seems like a monumental waste of time.

A case in point is the present confirmation hearing of Judge Sonia Sotomayor who made the mistake several years ago of saying that she would hope that being a “wise Latina women” would help her to be a better judge than those rich white men whose experience of privilege and entitlement (talk about a culture of entitlement!) has not taught them how to spot their own prejudices and blind-spots.

As Eugene Robinson of the Washington Post wrote yesterday, the macabre dance now unfolding before the Senate Judiciary Committee says more about the prejudices of the Senators than it say about the abilities of Judge Sotomayor as a judge.

Republicans’ outrage, both real and feigned, at Sotomayor’s musings about how her identity as a “wise Latina” might affect her judicial decisions is based on a flawed assumption: that whiteness and maleness are not themselves facets of a distinct identity. Being white and male is seen instead as a neutral condition, the natural order of things. Any “identity” — black, brown, female, gay, whatever — has to be judged against this supposedly “objective” standard.

Thus it is irrelevant if Justice Samuel A. Alito Jr. talks about the impact of his background as the son of Italian immigrants on his rulings — as he did at his confirmation hearings — but unforgivable for Sotomayor to mention that her Puerto Rican family history might be relevant to her work. Thus it is possible for Sen. Jeff Sessions (R-Ala.) to say with a straight face that heritage and experience can have no bearing on a judge’s work, as he posited in his opening remarks yesterday, apparently believing that the white male justices he has voted to confirm were somehow devoid of heritage and bereft of experience.

The whole point of Sotomayor’s much-maligned “wise Latina” speech was that everyone has a unique personal history — and that this history has to be acknowledged before it can be overcome. Denying the fact of identity makes us vulnerable to its most pernicious effects. This seems self-evident. I don’t see how a political party that refuses to accept this basic principle of diversity can hope to prosper, given that soon there will be no racial or ethnic majority in this country.

Yet the Republican Party line assumes a white male neutrality against which Sotomayor’s “difference” will be judged. Sessions was accusatory in quoting Sotomayor as saying, in a speech years ago, that “I willingly accept that we who judge must not deny the differences resulting from experience and heritage, but attempt . . . continuously to judge when those opinions, sympathies and prejudices are appropriate.”

This is supposed to be a controversial statement? Only, I suppose, if you assume that there are judges who have no opinions, sympathies or prejudices — or, perhaps, that the opinions, sympathies and prejudices of the first Hispanic nominee to the Supreme Court are somehow especially problematic.

Obviously, the race of a judge, his or her background and experience, and the previous decisions the judge has written will be relevant – but not always conclusive – to predict what kind of justice the candidate will be. But the US process requires judges – especially non-white and non-male judges – to pretend that it would not.

At the same time, just because one grew up white and privileged would not mean one would not be able to show the empathy and sensitivity and compassion which I believe to be an essential component of a good judicial temperament. Similarly, just because one is black or a woman would not mean that one would hand down pro-poor or gender-sensitive judgments.

In principle the South African system – which so far has been far less politicised than the US one – seems like a better model because candidates face questions from an array of people – including other judges and lawyers. Of course any procedure can be abused and we will see how the new JSC deals with the interviews of judges.

But all I can say is thank goodness we do not have a system in which ANC and DA MP’s get to grand-stand and score political points, forcing candidates to pretend they have no personality and no views on any topic whatsoever.

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