Concept
Freedom from Bias
Impartiality, fairness, and freedom from bias
Freedom from Bias
Rule 2.3 of the Model Code of Judicial Conduct is the Code's rule on bias, prejudice, and harassment.1 It works in two steps. Paragraph (A) sets the standard: a judge must perform the duties of judicial office, “including administrative duties,” without bias or prejudice.2 Paragraph (B) names the behavior that shows the standard has been broken. In performing judicial duties, a judge may not “by words or conduct manifest bias or prejudice,” and may not “engage in harassment.”3
Two features of the drafting control how you apply the rule. First, the standard reaches administrative duties, so a hiring decision or an appointment can violate it when no case is pending. Second, the grounds listed in paragraph (B) are illustrations, because the rule introduces them with “including but not limited to.”4 A prejudice that rests on a ground the drafters did not list is still prejudice.
The subsections below take the rule in order: the general duty; bias toward specific people; bias toward classes; and harassment, which the rule treats as a wrong separate from bias. The closing clause of paragraph (B), which makes a judge answerable for what court staff and others under the judge's direction do, belongs to the next section.5
The General Duty
Paragraph (A) is one sentence, and two of its parts carry the weight. The standard is freedom from bias or prejudice: a judge may not let a leaning toward or against particular people shape a decision when the leaning has nothing to do with the merits. The reach is the whole office, and the rule names administrative duties to make that explicit.6 The same standard therefore applies whether the judge is deciding a motion or filling a staff position.
Naming administrative duties matters because a judge's power extends well beyond the rulings in a case. Judges, presiding judges especially, hire and supervise staff, assign work, and choose which lawyers receive paid court appointments. Those decisions shape the livelihoods of people who may never appear as litigants. Without the express reference, a judge accused of favoritism in such a decision could answer that no case was being decided and the rule did not apply. The reference forecloses that answer.
Both scenes are constructed illustrations, because no decided case in this chapter's materials turns on bias in an administrative function. The two judges perform the same function, so the function cannot separate them. The basis of selection does. The first judge sorted lawyers by religion, which has no bearing on who should be appointed. The second sorted by experience and availability, which do bear on it. Choosing among candidates is ordinary judging of qualifications, and the rule asks only whether the criteria were relevant to the job being filled.
Rules 2.2 and 2.3 overlap, so a biased ruling or a biased administrative decision usually implicates both. Rule 2.2 directs judges to “perform all duties of judicial office fairly and impartially,” and Rule 2.3 directs them to “perform the duties of judicial office without bias or prejudice.” The Code defines impartiality as the “absence of bias or prejudice in favor of, or against, particular parties or classes of parties,” and to that extent the two rules cover the same turf.7 A ruling made out of hostility toward a party's ethnic group therefore breaches the duty of impartiality and the duty of freedom from bias at once, and the stronger answer names both.
Two refinements keep the overlap accurate. Impartiality is the broader idea, because it also includes “maintenance of an open mind in considering issues that may come before the judge.” That limb is regulated less often by Rule 2.2 than by the “act at all times” clause of Rule 1.2, so the bias rule is not the place to look when the only problem is a closed mind.8 And although Rule 2.2 speaks of all duties of office, only paragraph (A) of Rule 2.3 names administrative duties expressly, which makes it the first rule to cite for a biased hiring or appointment decision.
Paragraph (A) sets one standard for the whole office, and paragraph (B) addresses how bias shows itself through words or conduct.9 The next subsection begins with the question that matters most there: which attitudes toward specific people count as bias at all.
Bias Toward Specific People
Paragraph (B) reaches bias against individuals and bias against groups, and the Code treats the two differently because they arise differently.12 A prejudice against an entire category of people exists before the judge meets anyone in the case. An attitude toward a particular party, lawyer, or witness can be produced by the proceeding itself. This subsection takes the individual attitude, and the next takes classes.
With respect to specific people, impermissible bias does not ordinarily include the favorable or unfavorable views a judge naturally forms as the case unfolds.13 A judge may grow irritated with an obstreperous witness, admire the work of a capable attorney, or think less of a party as the evidence against that party builds. None of that is improper. Discipline is reserved for bias or favoritism that cannot be explained as a normal response to what the judge witnessed in court.14 The analysis therefore turns on one variable, the source of the attitude. If the courtroom produced it, the attitude is part of judging. If something outside the courtroom produced it, or nothing explains it, the attitude is the bias the rule targets.
The line falls there because judging requires forming impressions. A judge who watches witnesses, weighs testimony, and evaluates advocacy cannot avoid them, and a rule that punished every impression would punish judgment itself. The harm lies elsewhere. An attitude the record explains answers to something the parties did and the judge saw. An attitude with no courtroom explanation decides matters on something other than the record, and the party on the receiving end has no way to answer it.
In Grievance Administrator v. Fieger, four justices of the Michigan Supreme Court made the same point from the judge's side. They wrote that “[a] judge need not admire an individual, or respect his or her actions, in order to be able to accord the individual that which every party before this Court deserves—equal justice under law.” Each justice reported having looked inward, as must be done whenever disqualification is raised, and concluded that he or she could treat the attorney, Mr. Fieger, fairly and impartially in the case.15 The passage is the justices' own assessment of their ability to be fair. It shows that disliking a litigant's conduct and treating the litigant evenhandedly can coexist, but it does not decide whether bias was present in that matter.
Bias with no courtroom source sometimes arises inexplicably, as an excessive reaction to something that happens in court. More often it traces to a relationship that develops before or during the proceedings.16 A relationship supplies a motive for favoritism that the evidence never could, because friendship does not depend on which side has the better case.
Even in the relationship cases, the feeling is not what gets the judge sanctioned. Judges cannot be faulted for the likes and dislikes they develop toward the people they meet in their personal and professional lives, nor for the way a close relationship sometimes clouds evenhandedness. Who would blame a judge for being unable to be evenhanded in the trial of her former maid of honor? The fault lies in hearing the case anyway, which means the only reason such a judge is ultimately sanctioned for bias or favoritism is a failure to disqualify.17 That is why this topic connects to the disqualification rules: disqualification is the device by which a judge whose attitude comes from a relationship removes the problem before it affects a ruling.
Both judges had unequal feelings toward the people before them, so feelings alone cannot separate the two scenes. The first judge's reactions tracked an evasive witness and mounting evidence. The second judge's tracked a friendship, and the opposing party gave that judge nothing to react to. A stem that reports a judge's visible irritation with a lawyer who ignored repeated rulings points to the proceeding and does not describe bias. A stem that reveals a close tie between judge and party points to a relationship, and the answer should locate the violation in the failure to step aside.
Bias Toward Classes
Bias toward a class of people differs from bias toward an individual because nothing in the proceeding can explain it. A prejudice against a whole category exists before the judge meets anyone in the case, so no courtroom event excuses it as a natural reaction, and the analysis changes.19 Paragraph (B) identifies the protected classes by listing grounds of bias, prejudice, or harassment “including but not limited to” race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, and political affiliation.20
The Code is blunt about why class bias matters: judges who prejudge parties on such bases are incapable of impartially upholding the law and ill-suited to serve as judges.21 Class membership tells a judge nothing about the facts or the law of the dispute, so a ruling driven by it is a decision by category. A litigant can answer a judge's irritation at a particular act by acting differently, but cannot answer a judge's view of a race, a sex, or a religion.
Because “including but not limited to” makes the listed grounds examples, a class missing from the list is protected whenever the judge's words or conduct reveal the same kind of prejudgment.22 Judges have been sanctioned under Rule 2.3 for bias against victims of domestic violence, a group the text never names, and for favoring parties because of their statements about religious belief and practice.23 The second example shows that the rule polices favoritism as well as hostility.
Race shows why the Code speaks so directly to class bias. In 1990 the Model Code was amended to add a canon directing judges to perform their duties free from racial bias, and the accompanying commentary warned against bias in any form, including demeanor and body language.24 More recent research reveals persistent racial disparities across the administration of justice.25
The conduct that has drawn discipline shows how wide the prohibition runs. Judges have been sanctioned for using racial slurs on the bench and off it, for racially insensitive humor aimed at prospective jurors of Asian or African descent, for generalizing about a party's conduct from race, for questioning Hispanic litigants about their immigration status, for voicing contempt for a racial group as a whole, and for declaring that the children of an entire group are born to parents who abuse public assistance.26 Each treats the individual as a representative of a group, and the judge's conclusion about the group takes the place of any finding about the person.
In Tipton v. Aaron, a concurring opinion applied the same reasoning to a custody ruling. The trial court had said in its bench ruling that growing up in an interracial household would create problems for the child, and the concurrence observed that nothing in the evidence supported the assertion.27 The concurrence agreed with the majority that relying on what amounted to animosity toward the appellant's interracial marriage and household violated Palmore. It placed the error in basing the custody decision on the bias the testimony displayed, and it treated the admission of the testimony as only part of the problem.28 It read Palmore to mean that private biases may lie beyond the reach of the law, but the law cannot, directly or indirectly, give them effect, and it reasoned that a trial judge is empowered, if not required, to raise the issue without waiting for an objection.29
The concurrence rests on Arkansas's judicial canons, which parallel the Model Code. They require a judge to be faithful to the law, to perform judicial duties without bias or prejudice, and not to manifest bias or prejudice by words or conduct, and they bar a judge from permitting court officials or others subject to the judge's direction to do so.30 The case therefore shows how a Model Code-style rule applies to a decision resting on racial bias, and it does not interpret Rule 2.3 itself. The rule's verb matters here. Rule 2.3(B) is triggered when bias is manifested by words or conduct, and a ruling that rests on a racial premise manifests it.
Both judges decide a custody case that touches a sensitive subject, so the subject cannot separate them. In Tipton the decision rested on a premise about a racial category that the evidence did not support. In the hypothetical it rests on the evidence about the child.
Gender bias among judges tends to appear in two patterns: conduct that demeans or disparages people because of their gender, and unwelcome sexual advances or harassment. This subsection covers the first pattern, and the next covers the second.31 Sanctioned examples of demeaning conduct include referring to female lawyers by diminutive, childlike labels, teasing or humor that belittles women, and portraying women as inferior.32 The harm follows from the courtroom's structure. A judge who addresses a lawyer as a child tells the client and everyone present that the judge does not see a professional, and the lawyer depends on the judge's goodwill and is poorly placed to object.
On an exam, put one question to any stem in which a judge criticizes someone: does the criticism respond to what that person did in the proceeding, or to the group the person belongs to?
Both judges were displeased with a lawyer, so displeasure cannot be the dividing line. The first judge's displeasure ended with the lawyer's conduct. The second judge carried it from one lapse to an entire class. A related caution applies to stems that mention a protected characteristic. Paragraph (D) allows judges and lawyers to make legitimate reference to the listed factors, or similar factors, when they are relevant to an issue in a proceeding, a limit developed in a later section.33 The violation is prejudgment by category, and a protected characteristic that merely appears in the record does not make a ruling biased.
Harassment
Rule 2.3(B) names two separate things a judge may not do in performing judicial duties: manifest bias or prejudice by words or conduct, and “engage in harassment.” The listed grounds, sex and gender among them, attach to bias, prejudice, and harassment alike.36 Harassment gets its own place because it does not depend on the judge expressing any view about a group. A judge who presses unwelcome attention on a court employee need not say a word about the employee's sex for the conduct to injure the employee, so a rule limited to biased expression would leave that conduct untouched. The ban runs across every listed ground, but the sanctioned conduct and the Code's commentary concentrate on sexual harassment, and the examples below follow that emphasis.37
Judges wield considerable power, and power is subject to abuse.38 Harassment is one form the abuse takes. A lawyer depends on the judge's rulings to serve a client, a litigant has a dispute the judge will decide, and a court employee holds a job the judge influences. Each stands to lose something by objecting to unwelcome advances, and each knows it. Harassment therefore has to be understood with reference to the power judges wield over parties, lawyers, and court staff, whose members may fear the consequences of objecting or resisting.39 Behavior that might pass as ordinary social contact between peers becomes coercive when it comes from the person who controls the outcome, and a target's silence is poor evidence that the contact was welcome.
A comment to Rule 2.3 describes sexual harassment as encompassing “sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that is unwelcome.”40 The definition lists three kinds of conduct and attaches one qualifier, and the qualifier does the sorting. Welcomeness has to be judged against the power imbalance just described, so a subordinate's failure to object does not settle it. Gender-bias problems among judges have tended to fall into two patterns that call for different questions. The first, covered in the preceding subsection, is conduct that demeans or disparages lawyers, parties, or others because of their gender. The second is conduct in the vein of unwelcome sexual advances or harassment.41 The first treats a person as lesser because of gender, and the second treats a person as a target of sexual attention. One course of conduct can do both, and a careful answer tests the facts against each pattern.
Judges have been sanctioned for conduct across a wide range, from crass remarks to persistent advances, to groping, to preferential treatment in exchange for sexual favors.42 A remark can violate the rule without any touching. Persistent advances form a category of their own, which fits the reasoning above, because a target who fears the consequences of objecting cannot easily end the conduct. Trading favorable treatment for sexual favors is the gravest form, since the judge offers an official act as payment. It also breaches the duty of impartiality, because the treatment a party receives then depends on something other than the law and the evidence.43
All three scenes involve a judge in daily contact with lawyers or staff, so the contact itself cannot separate them. What separates them is the character of the conduct, which is sexual and unwelcome in the first two scenes and neither in the third, together with the power that makes objection costly. Praise or criticism of a lawyer's work responds to the work, and a judge may give either when it carries no sexual content.
Two traps appear on exams. A stem that reports no objection from the target invites the conclusion that the conduct was tolerated, but the better question is whether the target could safely object, because the rule is built around the fear of consequences that silences people in that position. The opposite trap is a stem that mentions only a judge's courteous or critical treatment of a woman lawyer, with no sexual content and no unwelcome advance. It describes harassment only if the treatment tracks her gender in a way that makes it demeaning. Harassment and bias can overlap, so a stem in which a judge both belittles a lawyer because of gender and presses advances calls for both analyses.