Real Bias

Lessons for Donald Trump from the Supreme Court’s latest judicial recusal ruling.

U.S. Supreme Court Associate Justice Anthony Kennedy arrives for the funeral of fellow Associate Justice Antonin Scalia at the the Basilica of the National Shrine of the Immaculate Conception February 20, 2016 in Washington, DC.
Supreme Court Justice Anthony Kennedy on Feb. 20 in Washington.

Chip Somodevilla/Getty Images

In the midst of a heated national debate about biased judges, the Supreme Court handed down a ruling on Thursday that backed tighter judicial recusal requirements by a fairly predictable 5-3 margin. In light of the court’s ruling, it’s hard not to reflect on Donald Trump’s well-publicized fight with a federal judge this week and what both stories can tell us about judicial bias.

But first, the details of this case: Williams v. Pennsylvania is about when a judge must recuse himself for appearance’s sake. The facts are straightforward: Back in 1984, 18-year-old Terrance Williams killed Herbert Hamilton, and later that year he beat 56-year-old Amos Norwood to death. He alleged that both were sexually abusing him. Williams was sentenced to death for Norwood’s murder. On appeal he argued that the prosecutor had hidden evidence of the sexual abuse. A lower court, opining on this prosecutorial misconduct, tossed Williams’ death sentence in 2012. Again on appeal, in 2014 the Pennsylvania Supreme Court reinstated it.

Here’s where things get sticky. The chief justice on the state Supreme Court was Ronald Castille, who had been the district attorney back when Williams was prosecuted in the 1980s. His was the decision to seek the death penalty. During his campaign for a seat on the state Supreme Court in 1993, Castille made a point of saying that he had sent 45 people to death row. And when the case came before that court almost 30 years later, Castille declined to recuse himself. In his concurring opinion in a ruling that reinstated the death penalty that he had initially sought, Castille denounced what he perceived as the “obstructionist anti-death penalty agenda” of Williams’ attorneys.

As a result of Thursday’s 5–3 ruling in Williams’ favor, he will receive a new hearing before the Pennsylvania Supreme Court at which he may challenge his sentence, without Castille on the bench. Adding to the intrigue, last year Pennsylvania Gov. Tom Wolf announced a moratorium on executions.

Justice Anthony Kennedy, who was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, held in his majority opinion that “the due process guarantee that ‘no man can be a judge in his own case’ would have little substance if it did not disqualify a former prosecutor from sitting in judgment of a prosecution in which he or she had made a critical decision.”

Kennedy went on to write that “[w]hen a judge has served as an advocate for the State in the very case the court is now asked to adjudicate, a serious question arises as to whether the judge, even with the most diligent effort, could set aside any personal interest in the outcome.”

John Roberts and Justices Samuel Alito and Clarence Thomas dissented, with the chief justice pointing out that “[t]he majority opinion rests on proverb rather than precedent.” (The proverb here is that prohibition about being a judge in your own case.) Roberts felt that Castille might have recused himself but that failing to do so wasn’t a constitutional violation. Added Roberts, perhaps intentionally: there’s “a presumption of honesty and integrity in those serving as adjudicators.” Thomas wrote a separate dissent that would have gone further, writing that “the specter of bias alone in a judicial proceeding is not a deprivation of due process.” He argued that “[r]ather than constitutionalize every judicial disqualification rule,” precedent demands the court leave such rules “to legislatures, bar associations, and the judgment of individual adjudicators.”

Nobody with a wireless signal can possibly miss the fact that the court waded into the murky discussion over judicial bias only days after Donald Trump accused the federal judge overseeing a class-action suit against Trump University of bias. The claim was that Judge Gonzalo Curiel was biased because his parents are Mexican, and Trump says horrible things about Mexicans, so Curiel can’t be fair.

Just as the fighting had begun to calm down—and Trump himself had opted to ease up on the most racist aspects of his attack on the judge’s integrity—Sen. Chuck Grassley suggested that Sotomayor’s comments about the impact of race on judicial outcomes was functionally the same as Trump’s attack on Curiel. (For his part, Grassley tried to walk that one back.)

Thursday’s decision in Williams in no way attempted to address the new GOP penchant for calling any judge who doesn’t agree with you a racist. Nor did it say much beyond the constitutional standard for recusal when a judge has played a significant role in prosecuting a case. But in his majority opinion, Kennedy tossed in a brief line that is worth holding on to this week: “Bias is easy to attribute to others and difficult to discern in oneself.”

The statement that people who don’t think like you because they don’t look like you must themselves be biased is not only itself a demonstration of bias. It also assumes that you and only you are the set point for human objectivity. Trump seems to be of the continuing view that his biases against Mexicans, Muslims, and women are neutral and rational. And Grassley is merely repeating the long-sacred GOP talking point that when conservatives speak of their ethnicity and heritage, it’s inclusive and beautiful, but when liberals do so, it’s a form of derangement that necessarily impairs judgment.

Put aside for a minute that Trump and Grassley are trying to disqualify judges for the temerity of having “race.” That isn’t even the real issue. The real problem is that Grassley and Trump also have a race, but in their own limited viewpoint, their race is the one that codes as “normal” and by default makes them “fair.”

We are all biased, and with luck all of our judges can put their own biases aside. Evidently in this instance the majority felt the judge could not. But as Kennedy carefully notes in Williams, putting bias aside requires the ability to see it. Trump, Grassley, and their brothers in bias can’t even seem to manage that.