Judges Gone Wild
Michigan defines judicial bias down.
DECEMBER 26, 2009.
The fallout is already coming from this year's Supreme Court Caperton decision on judicial bias, and it isn't good. A new rule on judicial recusal in Michigan shows how the decision could expose nearly every judge to charges of prejudice.
In Caperton v. Massey, the Supremes set out a new standard requiring judges to recuse themselves if there is a "probability of bias" in a case. That was a marked departure from historical standards, which required a judge to step off primarily when he had a direct financial interest.
Under the new rule, created by the Michigan Supreme Court to govern the state's judicial recusal standards, a judge's impartiality may be challenged by the parties in the case, and if he declines to recuse himself, he may still be voted off the case by his fellow judges. Under the traditional method, a judge himself had the discretion of identifying if a conflict or potential bias exists. Of course, that approach requires a belief that judges are largely honest and will act honorably.
Instead, judges are now being cast into a realm of suspicion and the presumption of partisanship. On the closely divided Michigan Supreme Court, the power may become a weapon in the hands of those seeking to insure their case finds a favorable audience with those who sympathize with their position. Or should we say, "empathize"?
In a state like Michigan, which holds judicial elections, the recusal plan could also become a bludgeon among judges. Arguments begun in hard-fought elections may now be continued by other means on the bench. If a judge professes a mistrust of corporate interests on the campaign trail, can his impartiality be challenged by any business interest appearing before him? It won't be long before trial lawyers start challenging the impartiality of any judge who has criticized the political influence of the plaintiffs bar.
"Starting today," Justice Maura Corrigan wrote in a fiery dissent from the Supreme Court's recusal ruling, "those contesting traffic tickets will enjoy greater constitutional protections than the justices of this court." The plan, she added, "imperils civility among the justices" and "will precipitate a constitutional crisis."
This mayhem is the strategy of the George Soros-funded Brennan Center and Justice at Stake that see draconian recusal standards as a way to stigmatize judicial elections. By impugning a judge's ability to rule impartially by attacking his campaign statements, these groups hope more states will choose their judges through "merit selection"—a process that gives disproportionate influence to lawyers and tilts state courts to the left. They've scheduled an event in Michigan in February to push the state to consider an end to judicial elections.
Proponents of the Michigan recusal plan and Caperton claim the new standards will improve judicial accountability. The opposite is closer to the truth. The ability to disqualify elected judges with little oversight or accountability will further politicize the judiciary and undermine its credibility with the public.
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