Gaming the System

Two judicial candidates and Indiana Right to Life recently sued to overturn long-established Indiana rules of judicial conduct. Those rules prohibit judges from answering surveys from advocacy groups about matters likely to come before the court. In the case of Right to Life, the surveys ask judicial candidates their views on abortion and euthanasia, arguing that voters have a right to know where potential judges stand.

This is like choosing football referees by asking which teams they favor.

To belabor the sporting analogy, our legal system is set up with the expectation that the “teams”—the plaintiff and defendant—will vigorously compete in court. Judges and juries, however, are expected to be objective referees. Their job is not to root for one side or the other, but to apply the rules, or laws, fairly. Good referees are chosen for their knowledge of the rules, their ability to recognize instances when those rules have been broken, and to call them like they see them.

Biased judicial referees can apply the rules in ways that game the system. There has been a great deal of concern in the legal community about the imposition of ideological  “litmus tests” for appointees to the federal bench, especially to the Supreme Court. The Bush Administration has consistently preferred judicial candidates who favor authority, who believe in executive supremacy (sometimes called the theory of the “unitary executive”) and opt for order over justice. With the addition of Justices Roberts and Alito, especially, the Court has significantly limited the ability of ordinary citizens to complain about actions of either government or big business.

Two recent examples may illustrate the point.

Last year, the Court handed down a relatively obscure ruling in Hein v. Freedom from Religion Foundation. The case was a challenge to the constitutionality of portions of the President’s Faith-Based Initiative. Applicable precedents—the existing rules of the game—strongly favored the plaintiffs.  But the Court didn’t rule whether the program was constitutional or not; instead, it dramatically tightened a doctrine called “taxpayer standing” and ruled that the plaintiffs, being mere taxpayers, had no right to complain. If you’re not allowed to suit up or take the field, it doesn’t matter how well you can play.

Or take the case of Lily Ledbetter, the female Goodyear employee who discovered, after 19 years on the job, that she was making substantially less than male employees doing the same work. The company closely guarded its payroll information, making it nearly impossible for workers to discover relative pay scales. Nevertheless, the Court held that the applicable statute gives 180 days from the date of “the violation” to sue, and “the violation” occurred when Lily was first paid. (The dissenters would have upheld the lower court ruling in Lily’s favor, and would have considered each paycheck a new violation for purposes of the statute.)

That’s how rules get applied when one of the teams gets to pick the referee. I don’t think we want to change Indiana’s rules of judicial conduct.