Now, perhaps more than ever, people in the United States are questioning the role of our judicial branch of government. With the recent death of Supreme Court Justice Ruth Bader Ginsburg and President Trump’s nomination of Judge Amy Coney Barrett to fill the vacancy, conversations about judges’ impartiality have become mainstream. These conversations are at odds with the traditional notion that the judiciary is the non-political branch of government, and that judges are simply the courtroom referees.
Of course, not everyone believes that all judges are neutral. Though they may try to adjudicate based on the law, judges are human. They are not immune to any of the biases that affect other human beings.
On the topic of judicial impartiality, we spoke with retired California Superior Court Judge Katherine Mader. Mader spent almost twenty years as a criminal trial court judge in Los Angeles County. Before running for judge, she worked as both a prosecutor and a defense attorney and served as the first Inspector General of the Los Angeles Police Department (LAPD). After an impressive career in the criminal justice system, Mader wrote a book titled Inside the Robe: A Judge’s Candid Tale of Criminal Justice in America.
We started our conversation discussing the surprises that come along with shifting from a practicing attorney to a judge: “All of a sudden you go from just a regular person to this fancy person . . . you are treated in so much more of a deferential manner.” Mader spoke on how quick and uncomfortable the change was, remembering that when people learned that she was a judge, even getting an appointment to see her doctor became easier.
Once she settled into the position, Mader soon realized the amount of power that trial judges have. She touched on the fact that not only do laypeople hold judges in high regard, but the judicial system itself specifically gives trial judges great discretion. When asked if trial judges feel restricted by the possibility of their decisions getting appealed, Mader said that she did, but that her position as a trial judge made it a pretty easy task:
When you have multiple decisions that are reported in the newspaper that are overturned and they put your name on it, it does raise questions I think in people’s minds as to your competence . . . . [But] it’s actually pretty easy to do. You keep a record as to why you’re making a discretionary decision and unless you’re being arbitrary and capricious you generally have your ruling affirmed.
If people generally think highly of judges, and the system reinforces their decision-making, what is left is a surprisingly subjective judiciary. Although two judges in the same courthouse follow the same laws, the results under each judge’s respective caseload may end up being dramatically different. The reason is that following the law as a judge is not as clear-cut as it may seem. Mader sought to explain why judges get different results:
I think, oftentimes, people do not realize that many decisions that judges make are not black or white, and don’t come from law books that you just pull down to find the answer to your question. I’d say most of what you do as a criminal judge is deciding between jail or probation, excluding or admitting evidence, or whether to allow a particular expert, like an eyewitness expert, into a trial. A judge can go either way on a lot of these issues, and most of the time, it’s not going to be reversed as long as the judge has got good reasons for choosing the path they chose.
Additionally, judges often rule with implicit biases. Mader believes that a judge’s “background and experiences play an important role in making these decisions. Most [judges] come to the bench with certain sets of philosophy and political experience.” For example, a judge that comes from the military may resolve legal issues differently than another judge who has been a member of the American Civil Liberties Union (ACLU) and has been going to protests their whole life. The retired judge described how she was a child of parents who fled Europe during the Holocaust. As such, she explained that she would try her best to withdraw a plea taken by an immigrant twenty-plus years ago while they were in the US on a Green Card, “particularly when the person has had a blemish-free” record since that time. While Mader may have had her familial history on her mind when the Immigration and Naturalization Service attempted to deport people in these cases, other judges may not have had that same experience.
Having diverse backgrounds is not the only reason cases from one judge to another may end so differently. Whether a judge is new to the bench or was elected ten years ago may affect their decisions. Mader explained how, being a particularly reflective person, she was frightened as a new judge by the thought of making instantaneous decisions, like sustaining or overruling objections in the courtroom. “There’s a tendency for judges in the beginning to feel that they have to make a decision immediately, even on really important issues in a trial, rather than just saying ‘You know, I’m really not sure about that. I’m going to take a ten-minute break [to make a decision].'”
In addition to a judge’s background, context plays an essential role in a judge’s decision-making process. For instance, if a judge is up for reelection or retention, and a police union made considerable contributions to that judge’s first campaign, that judge may decide cases based on the union’s interests. Mader, who worked closely with the LAPD as the Inspector General, described how such a scenario might affect a judge’s decisions in the courtroom:
Our public officials are elected. And they are generally elected from people who watch ads, which cost a lot of money. The police unions are very active in trying to get politicians and judges elected . . . and it’s not just financial support. It’s going door to door on behalf of the candidate.
Another political context that judges, particularly criminal judges in California, must consider is the possibility of disqualification. During our interview, Mader told us that if a defense attorney thinks a judge favors the prosecution too often or vice versa, she can disqualify a judge. Or, if the District Attorney’s (DA) office has had it with a particular judge, they can file a blanket affidavit, thereby preventing that judge from hearing any of their cases. Thus, the judge is forced out of his assignment by way of having no work to do.
In addition to pressure from powerful political groups, Mader highlighted how social context severely affects a judge’s decision-making process. She said that typically outside forces come from both sides and push a judge to the center (perhaps explaining the belief that judges are neutral). Sometimes, however, those pressures push a judge right out of the courthouse. In 2018, Santa Clara County Superior Court Judge Aaron Persky was recalled after sentencing Brock Turner, a Stanford swimmer found guilty of felony sexual assault, to six months in prison and probation. Regarding this case, and the effect it could have on judicial decision-making, Mader stated:
I don’t know if Judge Persky was a good or bad judge. But when you ask how [context] affects the system you can certainly see how judges up and down the state are never going to give probation in a rape case after they see what happened to Judge Persky. For judges, it is kind of sobering to see how you make one decision and you’re thrown off the bench.
As more people become more critically engaged with the judiciary in the US, more questions about judges’ subjectivity will arise. People will continue to argue that the judicial branch must remain apolitical to protect the courts’ integrity. But the more critical discussions going forward will recognize that, like retired Judge Katherine Mader has learned through her experiences, there is no removing the biases of a person just because they are wearing a robe.
Gabrielle Wast is a 2L at the University of Pittsburgh School of Law and JURIST’s Senior Social Media Editor.
Kristen Doyan is a 2L at UCLA School of Law and an Assistant Editor at JURIST. She is interested in pursuing a career in labor and employment law.
Suggested citation: Gabrielle Wast and Kristen Doyan, Who is Behind the Bench? Insights on the US Judiciary with Retired Judge Katherine Mader, JURIST – Student Commentary, October 2, 2020, https://www.jurist.org/commentary/2020/10/gabrielle-wast-kristen-doyan-interview-katherine-mader/.
This article was prepared for publication by Timothy Miller, a JURIST Assistant Editor. Please direct any questions or comments to them at commentary@jurist.org
