Should judges be politically neutral?

Martin Mullaney explores the idea of political neutrality within the judiciary system, highlighting the ways in which the system needs to work to separate political parties from law interpretation.

Having your phone go off in a lecture, library, church, or just about anywhere where your offbeat ringtone will incur annoyed glances rather than laughs, is one of the most excruciating experiences a person can have. 

Bruce Schroeder is well aware of this. During the trial of Kyle Rittenhouse, who shot and killed two men during the unrest that followed the police shooting of Jacob Blake, the Circuit Judge’s ringtone was revealed to be Lee Greenwood’s God Bless the U.S.A., an insufferably patriotic ballad which has become a favourite of Republicans and, in particular, disgraced reality TV star Donald Trump. Whether the song is suggestive of any political leaning or not (Schroeder was, admittedly, active as a Democrat in the 1970s) we should draw attention to the bias which would arise if an ardent Trump supporter was tasked with deciding the fate of a shooter whom Trump, along with many other Republicans, actively defended long before the trial.

“During the trial of Kyle Rittenhouse, the Circuit Judge’s ringtone was revealed to be Lee Greenwood’s God Bless the U.S.A., an insufferably patriotic ballad which has become a favourite of Republicans…”

Suffice to say, people were angry; to many, it was akin to a judge at the Hamburglar’s trial wolfing down a Happy Meal during closing statements. Schroeder’s questionable musical tastes, when viewed alongside several other instances in which he appeared to favour the defence, casts Rittenhouse’s acquittal in a dubious light. The question, however, is not whether Judge Schroeder may have been biased towards the defence, nor is it whether the verdict in that particular trial was fair. Rather, I want to look at the issue here of political bias in judges, the extent to which it influences how they do their jobs, and what can be done to prevent it from impacting the course of justice.

Expecting anyone, let alone a judge, to be truly apolitical is patently naïve. If judges were truly expected to have no political leaning, allowing them the vote would seem somewhat bizarre, and would lead to many more surreptitious polling station coin tosses than would be liked among a supposedly informed electorate.

So, we know that judges will never be politically neutral. So what? A judge’s job is to interpret the law and decide legal disputes. Surely, then, whatever political views they may possess are irrelevant as long as their legal knowledge is sufficient? Not so. Throughout history, different judges have reached vastly different decisions based on identical sets of facts, all due to interpretation. Such interpretive differences may arise, even subconsciously, from politics, especially given that the issues on which judges are asked to adjudicate are so often politically charged. This too is an inescapable fact of human nature. 

“Throughout history, different judges have reached vastly different decisions based on identical sets of facts, all due to interpretation.”

The problem arises when politics are prized above all else in judicial appointments, like in the United States where all federal judges are nominated by the President and approved by the Senate. The brazen politicisation of the US judiciary was pointed out by Professors Neal Devins and Lawrence Baum, who cited the fact that no President has nominated a Supreme Court justice who did not share their political ideology since 1990. The idea that fundamentally partisan politicians may appoint a judge with the expectation that said judge will adjudicate in a manner concordant to their political philosophy, and favourable to their policies, is outrageous – it entrenches political bias into the judicial system and risks turning questions of law into expressions of political affiliation. Thus, any demand to mitigate bias in the US, be it towards the Left or the Right or liberalism or conservatism, is a demand which necessitates a fundamental change in the nature of much of the nation’s judiciary.

What kind of change? In the UK, for example, judicial appointments are focused not on political leanings but on legal expertise and experience, and they are made by the Queen (in a purely formal capacity) on the recommendation of politically independent commissions like the JAC. 

This system is not perfect, nor can it fully remove the potential for politically biased judgements. Other schemes, such as greater promotion of diversity within the judiciary, would further improve its equitability – as of right now, Black, Asian and minority ethnic representation is lower in judiciary fields. What the severing of the judiciary’s dependence on political forces does do, however, is give it the kind of credibility that is sorely lacking in the US, as the Kyle Rittenhouse trial has clearly demonstrated.