On the Bias: Feminist Reconsiderations of the Aspirations for Our Judges

Abstract

The conveners of this Symposium have asked us to think about judicial election, judicial selection, and judicial accountability. Although plans for the symposium were made more than a year ago, the subject remains topical—capturing newspaper headlines, television air time, and law professors' conversations—as we continue to debate the qualities of Rose Bird, Cruz Reynoso, Joseph Grodin, Robert Bork, Douglas Ginsburg, and most recently, Anthony Kennedy. These debates have taken for granted some attributes of judging that I will examine. I am interested in the person of the judge and in the qualities demanded for legitimate judging. I have two central questions: First, what are the contemporary aspirations for those who judge? Second, how do feminist theories inform or challenge these aspirations? At one level, the answer to the first question is so easy that some might suggest it is a "straw person." A vast body of legal literature addresses the question of what qualifies a person to be a judge. We speak about seeking individuals who will be "impartial," "disengaged," "independent," and who will hear both sides and judge fairly. Yet, as I will describe in some detail below, what constitutes these qualities is complex. The current state of the law reflects either irreconcilable disagreements about when impartiality exists or unending difficulties in applying the theoretical demands for impartiality and disengagement. The tensions between stated expectations and practice lend an air of unreality to the articulated demands for impartiality. As the opening excerpt from the confirmation proceedings of Justice Lucas illustrates, current requirements for impartiality seem almost perfunctory—either not to be taken seriously or to be understood as ritualistic incantations of a tradition, the content of which is obscure.