Law Prof Sees Socioeconomic Bias on the Bench, Suggests Changes to ABA Model Code

In a 2010 opinion, Chief Judge Alex Kozinski of the San Francisco-based 9th U.S. Court of Appeals suggested that judges display “unselfconscious cultural elitism” when they overlook the impact of their decisions on poor people.

“There’s been much talk about diversity on the bench, but there’s one kind of diversity that doesn’t exist,” Kozinski wrote. “No truly poor people are appointed as federal judges, or as state judges for that matter. Judges, regardless of race, ethnicity or sex, are selected from the class of people who don’t live in trailers or urban ghettos.”

Now Golden Gate University law professor Michele Benedetto Neitz is examining that assertion in a paper available at SSRN. The ABA Model Code of Judicial Conduct bars judges from showing bias on the basis of socioeconomic status, she writes, but it’s not that easy. “New scientific research confirms that implicit bias can be prevalent even in people who profess to hold no explicit prejudices,” she writes.

In 2010, the median household income in the United States was slightly below $50,000, while federal trial judges earned $174,000, and appeals judges, $184,000. State court judges made more or less, depending on the jurisdiction.

Neitz makes her point with a reference to oral arguments in another 9th Circuit case concerning the constitutionality of mandated home visits for welfare recipients. One of the judges said: “I mean, you walk in and you see the $5,000 widescreen TV, and the person says, ‘Oh, I have all this trouble supporting my children cause I don’t have a man to help me in the house,’ and there’s obviously a man to help her in the house—and that’s seeing if the charity is going where it’s supposed to go …. And you open a closet and you see four suits … and the golf clubs of the person that doesn’t live there, supposedly—same thing, isn’t it?”

Neitz suggests changes in the ABA Model Code could help address the problem. “Some judges need to be reminded that their own experiences are often limited to the world of the privileged elite,” she writes.

Hat tip to Legal Ethics Forum.

We welcome your comments, but please adhere to our comment policy and the ABA Code of Conduct.

Commenting is not available in this channel entry.