Judges wield an awesome and final power over the liberty and property of their fellow citizens. . . . This power is tolerable in a democracy because judges speak only for reason and the law.
—Matter of Brown, 427 Mass. 146, 148–149 (1998)I give everybody a voice. I give defendants a voice, their families when they're here, I give victims a voice.
—Judge Rosemarie Aquilina, 30th Judicial Circuit Court, Ingham County, MichiganI. Introduction
Bench representation has been in the spotlight in recent years. One judge, in particular, has been in the center of that spotlight: Judge Rosemarie Aquilina, who presided over Larry Nassar's sentencing hearing after he was convicted of sexually assaulting hundreds of young women athletes.Footnote 1 Throughout the course of the hearing, Judge Aquilina clearly, unambiguously, and intentionally aligned herself with Nassar's victims.Footnote 2 More than that, however, Judge Aquilina spoke for Nassar's victims from the bench. She regarded herself as both telling and enabling the telling of victims’ stories.Footnote 3 By so doing, Judge Aquilina served as a bench representative for Nassar's many victims—giving voice from the bench to their pain and their anger on their behalves.
Many, particularly the media and a quickly built fan base, say that Judge Aquilina “reinvented what it is to be a judge.”Footnote 4 But did she? The public attention drawn to this sentencing hearing makes bench representation seem like an outlier phenomenon, a radical departure from past practice. On closer examination, however, it does not seem to be.
Look in any courthouse and you will find a judge who, in their role as judge, represents one or another party to the adversarial proceedings before them. These judges speak or act for, instead of, or on behalf of the party—sometimes intentionally, although that need not be so for it to count as bench representation.
If you find yourself concerned at the suggestion that judges are (and, in some cases, are meant to be) representatives of the parties before them, you are not alone: “The importance of detachment, disinterest and impartiality to good judging is so deeply imbedded in our legal mythology that acknowledging judges as representatives can be perceived as a threat to the judicial function.”Footnote 5 How, after all, could a judge both represent a party to the proceeding before them and remain an impartial arbiter of that same proceeding? How could bench representation be compatible with the fairness of legal proceedings? On first glance, bench representation has the appearance of partiality and seems to show unfair favor to one party or the other, rendering the practice antithetical to the core function of the judiciary. However, bench representation usually undermines neither impartiality nor the fairness of a proceeding. In fact, it can redound to the values the judiciary is meant to further.
That we can properly think of judges as representatives of one or another party to the proceeding before them does not, however, mean that all exercises of this practice are permissible. But the impermissibility of the representative practices in which judges commonly engage cannot be explained simply by pointing out that the practices are representative in nature. As I will show, some representative activities are part and parcel of what it is to fulfill the role of judge.
Developing a clear understanding of bench representation matters for at least three reasons. First, doing so sheds new light on an old question that arises for jurists and scholars alike: “Are judges representatives?” Second, doing so helps reframe the terms of an ongoing debate in judicial ethics concerning what judges may do to “ensure pro se litigants the opportunity to have their matters fairly heard”Footnote 6 by situating that debate in a more general juridical practice that is, by many accounts, unobjectionable. Third, we have an interest, generally, in coming to better understand the nature of the relationships in which we stand to people in positions of authority with respect to us, who wield state-sanctioned or other forms of power over us. These relationships often have untold complexities, one of which I explore in this article. Better understanding these relationships, in turn, helps us better understand ourselves as democratic citizens.Footnote 7
In Section II, I discuss ways that courts and scholars have historically thought of judges as representatives. In Section III, I introduce and explain the concept of bench representation. In Section IV, I explore some novel normative considerations that emerge from looking at this underexplored but ubiquitous judicial practice. Section V concludes.
II. Judicial Representation, Generally
Whether, in what capacities, and by virtue of what judges are representatives are not new questions. In this section, I provide a brief overview of the different ways that courts and scholars have already conceived of judges as representatives. Of course, the concept of representation itself is not monolithic, and so it is no surprise that those who have given answers to the question “Are judges representatives?” make recourse to many different concepts of representation. To bring some order to courts’ and scholars’ many extant accounts of judicial representation and to provide a framework for thinking about bench representation, in particular, I draw on Hanna Pitkin's analysis of the concept of representation. Pitkin characterizes representation, generally, this way: “representation, taken generally, means the making present in some sense of something which is nevertheless not present literally or in fact.”Footnote 8 Within this quite general characterization are more particular characterizations of what it means for one person, group, or thing to represent another person, group, or thing. Pitkin distinguishes symbolic representation, descriptive representation, substantive representation, and formalistic representation. To her schema, I add substitutive representation. I introduce characterizations of each of these forms of representation in this section. It is worth noting that, although these varieties of representation are conceptually distinct, they are not mutually exclusive. Often, several concepts of representation will apply to the same case.
A. Symbolic Representation
One symbolically represents another by standing in for that other in some way. So, for instance, “a flag represent[s] a nation” by making that nation present in some nonliteral sense.Footnote 9 Although “symbols do sometimes seem to share some characteristics with the things for which they stand. . . . [for instance,] the United States flag has fifty stars to correspond to the fifty states of the nation,” symbolic representatives need not share characteristics with the thing, person, or group being represented—they may instead be arbitrary conventional symbols.Footnote 10
It is common to think of the judge as a symbolic representative of various abstract concepts. Judges are characterized as representatives of the law,Footnote 11 justice,Footnote 12 “the majesty and the sanctity of the law. . . . the first line of defense locally of organized society against vice, corruption and crime, and the sinister machinations of the underworld,”Footnote 13 or, simply, “‘nothing except the abstract ideas of equity and justice.’”Footnote 14 Sometimes, they are thought to be synecdochic for the state or judicial branch of government as a whole.Footnote 15
But what, in fact, does it mean to say that a judge symbolically represents an abstraction? For a judge to represent in this sense is to “embody[ ] the values of a society”Footnote 16 and embodying values, in turn, means acting in accordance with those values and being free from any restraints that would prohibit so doing.Footnote 17 Whether a given entity or person symbolically represents is determined by “beliefs and attitudes . . . of an audience, or a group which either believes or does not believe in the symbolic representation enacted before it.”Footnote 18
B. Descriptive Representation
A person, group, or thing may instead represent another by resembling that other—by being like them in some respect that is relevant to the context of the representation.Footnote 19 The question whether and to what extent judges should be descriptive representatives of various subgroups within a given society so that the judiciary as a whole reflects the diverse identities and lived experiences of that society is widely discussed.Footnote 20 (It has also been pointed out that judges are, inescapably, descriptive representatives of at least one sector of any society—namely, the educated elite.Footnote 21) However, one may be a descriptive representative by virtue not only of one's group membership or characteristic similarity to some members of one's society. Descriptive representation, in its broadest meaning, is simply “a giving of information about.”Footnote 22 So, we may also think of those who serve as mouthpieces or spokespersons for others as descriptive representatives of those others.Footnote 23 This broader sort of descriptive representation—being a conduit of information about another—will be important to our discussion of bench representation in the next section.
C. Formalistic Representation
Representation is also sometimes thought of not in terms of what the representative is (a symbol, say) nor in terms of what a representative does (gives information, say), but instead in terms of how a party comes into the position. These formalistic accounts of representation answer the question whether a party is a representative affirmatively when that party “has been authorized to act”Footnote 24 for another, “will have to answer to another for what he does,”Footnote 25 or both. For the authorization theorist, one becomes a representative when and because they are granted authority—for instance, “a man represents because he has been elected at the outset of his term of office.”Footnote 26 For the accountability theorist, “a representative is someone who is to be held to account, who will have to answer to another for what he does.”Footnote 27 Pitkin herself identifies judges as representatives in this sense: “From a formalistic standpoint, a judge is an agent of the state like all government officials. His pronouncements are not private expressions of opinion, but official utterances of the state. Hence he represents the state. In a democracy where all agencies of the government are servants of the sovereign people, the judge might be said to represent the people.”Footnote 28
United States courts have faced more difficulty dispositively answering the question whether judges are representatives in this formalistic sense. In recent American jurisprudence, the general question “Are judges representatives?” has been treated as elliptical for the narrower question, “Are judges representatives in the way that legislators are representatives?” To answer this narrower question, some courts, looking at the formal elements of the judicial office, suggest that judges are representatives in the way legislators are insofar as judges are authorized directly by voters or mediately by their democratically authorized appointers,Footnote 29 or instead insofar as they are accountable to their electors.Footnote 30
Others draw a line between judges and legislators: “Manifestly, judges . . . are not representatives in the same sense as are legislators or the executive.”Footnote 31 Explaining this difference, courts point to various considerations, including the sui generis role of the judge as “an essential bulwark of constitutional government, a constant guardian of the rule of law,”Footnote 32 their independence from the pressures of the popular will,Footnote 33 the fact that some judges are appointed rather than elected,Footnote 34 and the ordinary meaning of the term “representative.”Footnote 35
D. Substantive Representation
A person or group may substantively represent a person, group, or entity. Substantive representation occurs when (i) the representative party acts “in the interest of the represented, in a manner responsive to them,” (ii) the representative party acts independently, using their own “discretion and judgment,” (iii) the representative party acts in a manner that does not normally conflict “with the wishes of the represented” (and when there is conflict, there must be “good explanation of why their wishes are not in accord with their interest”), and (iv) the represented are themselves “capable of independent action and judgment,” and are “not merely being taken care of” by the representative party.Footnote 36 Responsiveness is explained in terms of what guides the actions of the representative party: “one represents whatever guides one's actions.”Footnote 37 So, part of what it is to substantively represent is to be bound by the action-guiding features of whatever it is that one represents—that is, the represented's reasons and whatever else might inform these (including the represented's values, interests, and preferences as well as any commitments between the representative and the represented).
Judges are often conceived as representatives in this sense: “judges . . . represent interests other than their own.”Footnote 38 Invoking a tone of political realism, courts and scholars alike have thought that judges, and elected judges in particular, are substantive representatives of the popular will precisely because they are, it is said, beholden to act in a manner responsive to group pressures: “so far from being a sort of legal machine, they are a functioning part of this government, responsive to group pressures within it, representative of all sorts of pressures, and using their representative judgement to bring these pressures to balance, not indeed in just the same way, but on just the same basis, that any other agency of government does.”Footnote 39 Some pair this observation with a prescription, claiming that judges are not just in fact responsive to the popular will, but should be.Footnote 40
But a judge may also be a substantive representative by virtue of being independent of the popular will: “A judge who represents justice is one whose actions are governed by or in accord with justice (which requires that he be free from other restraints).”Footnote 41
E. Substitutive Representation
We may also think of representation as acting for another in the sense of being a substitute for them. However, there is a distinction between mere substitution and substitutive representation. In mere substitution, “the one replaced is not held responsible for the conduct of his substitute.”Footnote 42 By contrast, substitutive representation requires not merely that one person acts in place of another, but also that the substituted party will still be responsible for the conduct of the substituting party.Footnote 43
At least two varieties of substitutive representation are relevant here. In some cases, the substitution is of one party for another (role substitution). In other cases, what is substituted is not one party for another but the judgment of one party for the judgment of another (judgment substitution).Footnote 44 Judges are commonly thought to be role substitutive representatives of others—the judge stands in for the state and, in democracies, for the people, too.Footnote 45 As to the second sense of substitutive representation—judges are commonly characterized as substituting their judgment for ours: “U.S. Supreme Court Justice Harlan F. Stone once wrote that the considered decisions of judges ‘represent the sober second thought of the community, which is the firm base upon which all law must ultimately rest.’”Footnote 46
F. Taking Stock
For all the many ways that judges are considered representatives—those discussed here as well as those I have surely forgotten—a judicial representative role has been left out. It is a role more immediate and quotidian than any of those so far considered. And, to see it, we need not pore over obscure legislative histories found in the annals of the Minnesota State House.Footnote 47 We need only reflect on the everyday work of the judiciary. It is my aim in the rest of this article to provide a characterization of that role—bench representative—and to motivate why we should care about it.
III. Bench Representation
Bench representation occurs when a judge, through statements or actions undertaken during the performance of their official duties (for instance, in an opinion, at a hearing, or during oral argument), speaks or acts on behalf of a particular individual or group who is party to the proceeding before them. Occasionally, the practice will evoke shock and concern, seeming to violate fundamental canons of judicial ethics—considerations to which I return in the next section. More often, however, the judge speaks or acts for the parties before them in routine, workaday contexts so subtle they elude notice. Bench representation is among the most obvious yet least recognized ways that judges represent us.
Perhaps it is unsurprising that bench representation has been overlooked. In fact, I suspect that the proposal that judges represent the parties before them in a proceeding will strike representation theorists and jurists alike as heterodox. A cursory look at the index of Pitkin's seminal work, The Concept of Representation, reveals her skepticism: “Judge as representative . . . not of parties before him, 52-53.”Footnote 48 Yet, closer examination of these pages shows that Pitkin does not wholly rule out the possibility that a judge might represent one or more of the parties before them. Instead, she merely places a constraint on what may count as bench representation: “Not every ascription of the normative consequences of A's actions to B is an occasion for saying that A represents B.”Footnote 49 For it to be the case that A represents B, not only must the normative consequences of A's actions be ascribed to B, the actions that brought about those normative consequences themselves must be ascribed to B as though B had performed them.Footnote 50 To illustrate this point, Pitkin contrasts a judge who issues an injunction that binds a union with a union negotiator who agrees to a contract that binds the union. Although both actions (enjoining; agreeing) will have normative consequences for the union, the latter but not the former is representative in nature. The normative consequences of the judge's injunction are ascribed to the union, but the issuance of the injunction itself is not. By contrast, both the normative consequences of the negotiator's agreement to the contract and the agreement to the contract itself are ascribed to the union.Footnote 51 “[T]he ascription of the action is what is fundamental here; the ascription of consequences is but one kind of occasion or reason for ascribing an action whose consequences normally would fall on the actor himself.”Footnote 52
We can easily accommodate Pitkin's constraint and still reach the conclusion that, in the course of their everyday undertakings, judges represent the parties before them from the bench.
A. Key Components of Bench Representation
What does it mean to say that a judge represents at least one of the parties before them during adversarial proceedings? All instances of representation have at least these components: (1) a representative, (2) a represented party, (3) the context in which the representation takes place, (4) an audience before which the representation takes place, and (5) the content of the representation.Footnote 53
Bench representation has a few starting points that are fixed simply by stipulation. (1) The judge is the representative. (2) The represented party is a party to the adversarial proceeding. (3) The immediate context in which the representation takes place is the court proceeding within which the judge and adversaries find themselves. However, there will often be further contexts that are extensions of this immediate context—namely, the elements of the court record generated by the court itself during or subsequent to the proceeding, which can include, for example, transcripts, notices, orders, judgments, decrees, decisions, rulings, opinions, memoranda, warrants, writs, and subpoenas. (4) Bench representation can take place before a wide variety of audiences. Audiences who will be common across cases of bench representation include the adversaries, their lawyers, and the court itself (an entity distinct from the particular individual judge who presides in that court). Other common audiences include jurors, clerks, witnesses, victims, and members of the media. When the court proceedings are televised or otherwise publicly transmitted, audiences may also include anyone who has tuned in. (5) The content is that which the judge says or does on behalf of the party to the court proceeding.
But, what are the activities in which judges engage such that it is apt to say that they represent a party to the proceeding before them? Like representation generally, bench representation is not a monolithic category. There are a variety of activities in which judges routinely engage in the course of their everyday work that are aptly characterized as representative. Here, I apply several of the concepts of representation introduced in the previous section.
B. Descriptive Representation
There is, first, a rather uninteresting way that all judges represent all parties who come before them in a proceeding—at least when those proceedings eventuate in the issuance of a court opinion. On one way of conceiving of representation, representation occurs when some party (the representative) conveys information from another party (the represented) to a third party (the audience). On this view, “[r]epresenting means giving information about the represented; being a good representative means giving accurate information.”Footnote 54 Judges engage in this sort of mouthpiece representation when they recapitulate or abridge parties’ arguments in their written opinions. Here, the judge simply transmits information from the party—their arguments—to any audience who reads or otherwise encounters the court's opinion. Key features of this sort of bench representation are these: First, the standard for the success of such representation is its accuracy. Second, while this may be an uninteresting and relatively straightforward sort of representation, it plays a role in one of the most important judicial functions—the writing and (in some cases) publication of opinions, which “memorialize judicial decisions so they can function as authoritative statements of law governing the resolution of future cases.”Footnote 55
In other cases, judges do not merely report or recapitulate the words a party has in fact said, but engage instead in an interpretation or translation—what a party would have said (if they could) or should have said (were they trained in the law). Below, I discuss paradigmatic examples of this sort of bench representation: entering pleas on behalf of nonpleading or creatively pleading defendants and liberally construing the pleadings of pro se litigants.
In both cases—mouthpiece representation and interpretive representation—the judge is a conduit of information between the represented party and the court (along with any further audiences).
1. Entering Pleas on Behalf of Defendants
In trial-level criminal proceedings in the United States, judges are legally required to enter a plea of “not guilty” on behalf of a defendant who either refuses to enter a plea or fails to appear in court.Footnote 56 Similarly, judges tend to interpret and enter creative pleas as pleas of “not guilty.”Footnote 57 As with mouthpiece representation, the judge who enters the plea of “not guilty” on behalf of the nonpleading or creatively pleading defendant provides information from the defendant to the court record and, so, to any audiences who will read that court record in the future. By contrast with mouthpiece representation, the judge has clearly not served as a mere mouthpiece. Rather, the judge has formulated the defendant's plea (in the case of a nonpleading defendant) or reformulated the defendant's plea (in the case of a creatively pleading defendant) so that it conforms to the permissible pleading standards of the court.
One may be tempted to say that this is not really representation. Rather, the law requires and expects judges to preserve the accused's presumption of innocence. Judges do so in such cases by entering a “not guilty” plea on the defendant's behalf. But the judge is just following the law.
Although it is true that the judge in such cases is just following the law, that does not mean that what the law requires of them is not a form of representation—representation of an admittedly limited and nondiscretionary sort but representation, nonetheless.
2. Liberally Construing the Pleadings of Pro Se Litigants
In Haines v. Kerner, the United States Supreme Court guaranteed pro se litigants (those proceeding without counsel) “the right to have courts liberally construe their pleadings.”Footnote 58 While “a court is not required to divine every conceivable interpretation of a motion,”Footnote 59 it is “instructed to look to the substance rather than the label of a pro se pleading in order to determine if the petitioner may be entitled to relief,”Footnote 60 must give the pleading “every reasonable intendment,”Footnote 61 and must view the pleading in a manner “favorabl[e] to the pleader.”Footnote 62 The judge's aim is to search the pleading for “a justiciable claim for relief.”Footnote 63 As Rule 8I of the Federal Rules of Civil Procedure requires, “[p]leadings must be construed so as to do justice.”Footnote 64 Liberal construction of pleadings is not optional: “A court abuses its discretion if it construes a filing by a pro se litigant in a manner that prevents the litigant from proceeding, when a reasonable, liberal construction of the document would permit the litigant to do so.”Footnote 65 When the judge construes the pro se litigant's pleading liberally, they apply their legal expertise, experience, and acumen to the pleading on behalf of the pro se litigant—in effect representing the pro se litigant (represented party) to the court and any future parties who will consult the court's record of the case (audiences).
One may be tempted to say that this is a real stretch: thinking of a judge as a representative of a pro se litigant when they construe the litigant's pleadings liberally is to entertain a deceptive fiction that the court, conceived as an audience, is something other than the judge themself.
However, there is no reason to think that a representative party and an audience have to be different individuals, so long as they are performing two different functions when inhabiting the two different roles. The same judge can simultaneously be the representative of the pro se litigant when they liberally construe the litigant's pleadings and the audience insofar as the judge is the party presiding in the court. In fact, it is dangerous and in any case incorrect to think of the judge as themself the court rather than the party who fulfills the institutional role of the court in a given instance—to confuse the individual judge and the court they oversee is to suggest that judges engage in personal rule rather than serving as facilitators of the rule of law.
Even so, one may then raise a similar question to the one raised above about the entry of “not guilty” pleas: Is the judge in this case, too, not simply following the law when they give the pleading every reasonable intendment?
Again, the fact that the judge is following the law does not preclude the possibility that what the law requires of them is precisely to represent the litigant to the court. Here, we may employ the substantive sense of representation: part of what it is to substantively represent is to be responsive to (and so bound by) whomever or whatever it is one represents. So, (i) the judge descriptively represents the pro se litigant by interpreting the litigant's statements and accurately expressing those statements as interests that are cognizable as legal claims to the court and (ii) the reason the judge does so is that they substantively represent the law—the judge “is bound to apply the law; hence it is the law he represents.”Footnote 66
However, even granting that the entry of “not guilty” pleas and the liberal construction of pro se litigants’ pleadings are both forms of representation, they are admittedly forms of bench representation of not very interesting sorts. They are nondiscretionary and limited in their scopes. However, it is important to have them in view in order to have a complete sense of all the judicial activities that fall within the ambit of the concept bench representation. (And, even if we ultimately decide that they are not themselves properly conceived as forms of representation, both share features in common with other, central cases of bench representation, and so deserve consideration by virtue of their family resemblance to these.) To bring out the relationships between these less interesting examples and those that are more interesting, consider next some discretionary judicial activities that seem much more straightforwardly to be instances of representation.
C. Substantive Representation
Judges sometimes serve as substantive representatives of one or more of the parties to a proceeding. This means at least that (i) the judge acts in the interest of the party to the proceeding, (ii) the judge acts in a manner that is responsive to the party, (iii) the judge acts in accordance with their own discretion or judgment (not as a mere mouthpiece for the party), and (iv) the party must be conceived as capable of independent action and judgment—they are not a mere charge or ward of the judge.
One form of judicial activity, in particular, is a paradigmatic example of substantive bench representation: judges’ assistance to pro se litigants. Although proceedings involving pro se litigants will strike some as exceptional, they are in fact very (and increasingly) common, both because hiring a lawyer can be prohibitively expensive and because “[t]he majority of prisoner petitions are filed pro se.”Footnote 67
Although judges are required to construe the pleadings of pro se litigants liberally, they are permitted to do much more: they may, for instance, question pro se litigants to help those litigants “present the evidence necessary for the court to make a decision,”Footnote 68 explain points of procedure, allow amendments to filings so that the filings conform to the court's requirements. Some judges “assist pro se litigants with the presentation of their claim or defense, and ‘protect’ the pro se litigant who is being taken advantage of by an attorney.”Footnote 69 Two pro se assistance activities, in particular, fall squarely within the ambit of substantive representation. First, “[t]o take testimony, some judges ask questions of the witnesses themselves”Footnote 70—an activity that would otherwise be performed by the pro se litigant themself or, had the litigant counsel, their lawyer. Second, some judges assist pro se litigants in the presentation of evidence by raising objections on behalf of those litigants.Footnote 71
Some judges are not especially keen to regard their activities as representation. According to one judge surveyed on the matter: “‘Attorneys get impatient and act as if the court is trying to represent the pro se—which I am not trying to do.’”Footnote 72 However, when judges question witnesses or raise objections on behalf of pro se litigants, they are clearly serving as substantive representatives of those litigants: (i) The judge acts in the interest of the litigant by soliciting evidence that will help further the litigants’ case (witness questioning) or by protecting the litigant from the introduction of evidence by the opponent that would not otherwise be permitted (raising objections). (ii) The judge acts in a manner responsive to the pro se litigant: the judge questions witnesses in order to advance the proceedings that the litigant either themself initiated or was hauled into court to address; the judge raises objections to ensure that the litigant is not specially disfavored in the proceeding by virtue of their lack of legal training—said the same surveyed judge, “‘I want the pro se to feel they got a fair trial.’”Footnote 73 (iii) The judge clearly acts in accordance with their own discretion or judgment—precisely what the pro se litigant lacks in these cases is knowledge of how to present their case so as to conform to the standards required by law, so the judge must be able to act in accordance with their own discretion or judgment to advance the litigant's interest (in having their case heard) in a manner that conforms to the court's standards. And (iv) the pro se litigant is conceived as capable of independent action and judgment: they are no mere charge or ward of the judge, but are instead someone who has everything they need to bring their own case except the legal expertise that would help them navigate the byzantine channels of legal procedure.Footnote 74
D. Substitutive Representation
Judges have considerable discretion to insert themselves into the roles of the parties before them (role substitution) or, in some cases, to substitute the judgment of the parties with their own judgment (judgment substitution). The cases considered here are instances of substitutive representation and not mere substitution because the party whose person or judgment has been substituted will still be responsible for the conduct of the substituting party.Footnote 75 Here, I consider both varieties of substitutive representation in which judges routinely engage.
1. Judgment Substitution
Judges commonly substitute their own judgment for the judgment of the parties. Indeed, we may think that this is one of the most obvious and common ways that judges represent the parties before them from the bench.
A particularly salient (and controversial) example of this sort of substitutive representation occurs when courts raise issues sua sponte—considering issues the parties themselves did not raise and sometimes even deciding cases on these bases.Footnote 76 This is substitutive representation and not mere substitution because the represented party—the party whose stated position has been augmented by issues they did not themselves raise—will be responsible for the conduct of the substituting party.
One may question whether a judge's raising issues sua sponte is properly conceived of as representation at all. Above, I discussed one of Pitkin's constraints on what counts as representation: for it to be the case that A represents B, not only must the normative consequences of A's actions be ascribed to B, the actions that brought about those normative consequences themselves must be ascribed to B as though B had performed them.Footnote 77 When a judge raises an issue sua sponte, it is certainly the case that the normative consequences of the judge's so doing will be ascribed to the parties—the issue will play a role in judicial decision-making about the case, the normative consequences of which will be ascribed to the parties to that case. But is the judge's action of issue-raising itself thereby ascribed to the parties as though the parties had raised the issues themselves? On first glance, this does not seem to be the case: that the judge has raised the issue sua sponte means precisely that it was not raised by either of the parties. However, there is a different way of understanding sua sponte issue-raising that suggests that the action itself is ascribed to the parties: when a judge raises an issue sua sponte, they substitute the judgment of the parties with their own judgment concerning what issues should be considered in adjudicating the case. This is, on the views of many, not the role that the judge is meant to play in adversarial proceedings.Footnote 78 Rather, in an adversarial system, “the judge looks to the parties to frame the issues for trial and judgment.”Footnote 79 So, by raising an issue sua sponte, the judge represents the parties’ case to the court in a manner different from the manner the parties themselves had chosen. To raise an issue sua sponte, then, is not merely to ascribe the normative consequences of the court's eventual decision to the parties; it is also to commit the parties to a substantively different input into the court's decision-making process than the parties had antecedently chosen for themselves—it is to decide for the parties what issues will feature in the court's determination (a decision normally left to the parties in adversarial proceedings), which is, in effect, to ascribe those issues to the parties as though the parties had raised the issues themselves.
Judgment substitution also occurs in the course of the proceedings themselves. For instance, in Commonwealth v. Colon, the violation of probation (VOP) court compelled the District Attorney to hold a violation hearing over the shared and repeated objections of all three parties to the proceeding—the Probation Department, the District Attorney, and defense counsel.Footnote 80 The Court further substituted the Probation Department's judgment with its own, revoking Mr. Colon's probation over the Probation Department's recommendation to the contrary. Although the Superior Court of Pennsylvania found “that the VOP court did not err in holding the violation hearing or in ruling that Colon's possession of a controlled substance warranted revocation,”Footnote 81 the Superior Court's fifth footnote is telling: “As to the VOP court's attempt to dictate to the District Attorney how to proceed against Colon at the violation hearing, we find no legal support for such authority.”Footnote 82 In this case, the VOP court judge was not merely following the law, but instead substituting the judgment of all three parties to the proceeding with her own judgment.
2. Role Substitution
Judges have considerable discretion to insert themselves into the roles of the parties before them. As discussed, judges often insert themselves into positions that would otherwise be filled by a pro se litigant themself or, instead, counsel that the litigant does not have. However, role substitution also occurs outside the context of pro se litigation. When the District Attorney in Commonwealth v. Colon declined to question witnesses the court had compelled them to call, the VOP court judge conducted the questioning herself—thereby assuming the role of the State and acting in its stead.Footnote 83 As Commonwealth v. Colon illustrates, judges have considerable latitude not merely to compel parties to act as the judge sees fit, but also to assume the roles of those parties, substituting those parties’ judgments and actions with their own.Footnote 84
However, role substitution also occurs in more mundane contexts. When the judge enters a “not guilty” plea on behalf of a nonpleading or creatively pleading defendant, they do something that the defendant's attorney or the defendant themself would otherwise have done for the defendant. There can be no denying that a defendant's attorney is the defendant's representative to the court. So, even if, in the normal course of things, mere interpretation or translation should not be considered a form of representation, when the judge performs a function for a party (here, a defendant) that counsel would otherwise have performed for that party, the judge temporarily assumes the role of counsel for that narrow, specified purpose—they are the defendant's role substitutive representative.
E. Taking Stock
So far, I have categorized and examined different ways that judges represent the parties before them in adversarial proceedings. As the examples illustrate, judges represent the parties before them in a wide variety of contexts. Far from being an outlier case, Judge Aquilina's bench representation of Nassar's victims is just a recent instance of a well-established practice, not a reinvention of the judge's role.
Still, there is something odd in saying that judges represent parties before them in adversarial proceedings. But is there something wrong with the practice of bench representation?
IV. The Ethics of Bench Representation
At first glance, the idea that a judge may (or even in some cases should) represent a party to a proceeding before them is worrisome. It raises questions concerning whether those proceedings could be fair, which in turn depends partly on whether the judge could be impartial. Does bench representation threaten the fairness of legal proceedings? If so, is it because it hinders a judge's ability to be (or appear) impartial? Finally, what other concerns, if any, ought we have about the widespread but worrisome practice of bench representation?
A. Fairness and Impartiality
Fairness in legal proceedings is a complex good, and has a number of components, including impartiality. That is, impartiality is partly constitutive of the fairness of a legal proceeding. To have a fair proceeding, then, is, in part, for the decisionmaker (the judge, in the cases of interest to us) to be impartial in their conduct of the proceeding. For instance, in U.S. legal contexts, a defendant has a constitutionally protected right to a fair trial before an impartial judge. A trial before a judge who is not impartial is fundamentally unfair.Footnote 85
Although there are a variety of different conceptions of impartiality,Footnote 86 the conception relevant for our purposes is the conception of impartiality as a lack of bias toward or against any party to a proceeding. Charles Fried has characterized this sense of judicial impartiality as “a duty of loyalty to both sides” to a proceeding.Footnote 87 Judicial impartiality in this sense is satisfied only when the judge exhibits “humane concern . . . for both parties” (“even . . . agoniz[ing] about the difficult cases”) without allowing this concern to devolve into rooting for either party.Footnote 88 So characterized, the duty is satisfied only when the judge adopts an attitude that allows them to care about both parties’ interests without thereby championing either party's ends. Only a bit differently, the Court in Republican Party of Minnesota v. White characterized the lack of bias required for impartiality not in terms of an occurrent affective state judges should adopt, but instead in terms of habits of mind judges should rout from their conduct—namely, “bias for or against either party to the proceeding.”Footnote 89 The Court predicted that “[i]mpartiality in this sense assures equal application of the law. That is, it guarantees a party that the judge who hears his case will apply the law to him in the same way he applies it to any other party.”Footnote 90
Concerns about impartiality arise most often when judges have one or more types of special, personal interest in a case: personal interest in the outcome,Footnote 91 relational interest in one or more of the parties,Footnote 92 political interest in deciding the case consistently with a particular ideological bent or so as to promote their own judicial future,Footnote 93 or personal bias toward or against particular parties or groups to which those parties belong.Footnote 94 But actual bias need not be proven for impartiality to be brought into question as a legal matterFootnote 95: “there are objective standards that require recusal when ‘the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.’”Footnote 96 Despite the Court's “presumption of honesty and integrity in those serving as adjudicators,” the objective standard is justified by a concern that “psychological tendencies and human weakness” may in some cases “pose[ ] such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.”Footnote 97
Some are, of course, skeptical about the prospects for any of us, judge or not, being truly capable of exercising impartiality. Iris Young, for instance, cautioned that “impartiality is an idealist fiction.”Footnote 98 Others less skeptical are still realists about what the demands of impartiality can reasonably be—namely, when we expect judges to be impartial, we in fact expect them to be “impartial enough.”Footnote 99 This article does not operate in an idealist's vacuum about the prospects or promises of impartiality.Footnote 100
Note, too, that the concern raised here is not as to whether particular judges are able to remain impartial despite the representative demands of their role but rather as to (i) whether the practice of bench representation imperils all judges’ abilities to remain impartial or, even if it does not, (ii) whether the practice gives the appearance of partiality, and (iii) whether and how departures from impartiality or the appearance of impartiality could be justified.
B. Varieties of Bench Representation
Descriptive bench representation seems not to imperil a judge's actual ability to remain impartial, at least when impartiality is characterized as a concern for both parties. Nor does it seem to raise a concern as to whether a judge will appear partial to one party or the other. Substantive bench representation and substitutive bench representation, by contrast, raise both concerns—and some others, besides.
1. Descriptive Bench Representation
In descriptive bench representation, the judge acts as a mere mouthpiece or interpreter for the parties before the court. The performance of the role does not require the judge to show bias or favor to one party or another. The judge simply transmits information from the party to the court record and, mediately, to future audiences of that record.
Certainly, nothing about the activity of recapitulating or abridging parties’ arguments seems to put a judge in the position of having to show bias or favor to one party over another. Neither does the entry of “not guilty” pleas seem to put a judge in the position of having to favor the party in whose name the plea is entered. Indeed, because the judge is legally compelled to enter the plea on the defendant's behalf, the practice does not seem to require the judge to have any particular disposition to the party at all.
Still, there is the question whether either practice gives the appearance of partiality. The recapitulation and abridgment of parties’ arguments is a practice undertaken on behalf of both parties to a proceeding, and so does not require a judge to specially favor one or another party in order to perform the practice. Of course, it is not hard to imagine a case in which the judge's manner of recapitulation or abridgment in fact gives the appearance of partiality. But that is not the question under discussion. Rather, we are interested to know whether the judge's recapitulation and abridgment of parties’ arguments will in all cases give the appearance of partiality—and that certainly does not seem to be inevitable. The entry of “not guilty” pleas is a practice the judge is legally compelled to perform on the defendant's behalf, so it is reasonable to conclude that the judge will not be regarded as showing partiality toward the defendant by following the law.
So, bench representation and impartiality are not always at odds—in fact, they can be mutually supporting. These are, however, the easy cases—where the bench representative role is required by law and where it is unambiguous what the role requires.
Construing pro se litigant's pleadings liberally is a trickier case. Here, although the judge is legally compelled to construe the pleadings liberally, what a judge must do to satisfy this legal mandate will vary from case to case. U.S. law requires the judge to give the pleading “every reasonable intendment,”Footnote 101 to search the pleading for “a justiciable claim for relief,”Footnote 102 and to view the pleading in a manner “favorabl[e] to the pleader.”Footnote 103 Built into this legal requirement is the expectation that the judge will show interpretive charity to the pro se litigant.
Doubtless, a judge's interpreting nonstandard pleadings in a manner favorable to the pleader can give the appearance of partiality. But is there cause for moral concern here? There does not seem to be, on any one of several different interpretations of this practice.
First, we may think that construing pro se litigant's pleadings liberally is merely apparently partial. The practice simply makes it possible for the pro se litigant to be heard by the court. It does not require of the judge that they exhibit bias or favor to the pro se litigant, only that they take reasonable steps to avoid removing the litigant's case from court for reasons having nothing to do with the litigant's claim for relief—namely, the litigant's lack of legal training and counsel.
Even so, the legal standard for whether there is impartiality is not whether the judge in fact exhibits bias or favor but whether they appear to exhibit bias or favor. As to whether the practice makes a judge appear to exhibit bias or favor, we may again quite reasonably think that the fact that the judge is legally required to construe the pleadings liberally will mitigate any impression that the judge is going out of their way to show bias or favor to the pro se party—they are just satisfying what the law requires of them.
If, however, the practice does appear to undermine impartiality, that appearance in turn threatens to render the proceeding unfair. Below, I consider justifications for departures from the appearance of impartiality.
2. Substantive Bench Representation and Justifications for Departures from Impartiality or the Appearance of Impartiality
To depart from the appearance of impartiality is to depart from one component of fairness. Of course, that does not mean that the departure cannot be justified. To justify a departure from the appearance of impartiality (and so, from a component of fairness), it must be shown that the sacrifice is justified by the gain in some other contributory value. Departures from the appearance of impartiality can be justified by whether and how they augment other values that contribute to the overall fairness of a proceeding.
Here, I focus on substantive bench representation, where concerns about the appearance of partiality are most salient. The paradigmatic example of substantive bench representation is the judge who assists a pro se litigant by questioning witnesses or raising objections on the litigant's behalf. When providing this support, judges act in the furtherance of an end shared by the pro se party and the court—namely, getting at the truth of the matter by adducing evidence sufficient to support the pro se litigant's claim and, thereby, ensuring that disadvantaged parties are not denied equal treatment under the law.Footnote 104
The American Bar Association has explicitly acknowledged this permission to provide additional support in Comment [4] on Rule 2.2 of the Model Code of Judicial Conduct. Rule 2.2 states: “A judge shall uphold and apply the law,* and shall perform all duties of judicial office fairly and impartially.*”Footnote 105 Comment [4] clarifies: “It is not a violation of this Rule for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.”Footnote 106 Although it is left open what accommodations would be reasonable, some standard accommodations are enumerated: “assistance in rephrasing questions to a witness, re-naming a pleading so that the title conforms to court procedural rules, or clarifying the steps of the trial process.”Footnote 107 Judges are rarely (if ever) regarded as having abused their discretion when they do provide such accommodations, even when doing so may appear to undermine their impartiality.Footnote 108 To the contrary, judges have frequently been disciplined for “hav[ing] used the absence of an attorney to take advantage of self-represented litigants in blatantly unfair proceedings.”Footnote 109
When a judge helps a pro se litigant question a witness (for instance), they in effect serve as that litigant's legal representative and do so expressly for the benefit of that litigant,Footnote 110 even when it is also for the benefit of the coherence of the court proceeding and even if it happens also to be the case that “[o]ften the lawyer representing the other party appreciates these efforts to bring the matter to an orderly conclusion in a timely manner.”Footnote 111
These accommodations are very similar to related tasks that counsel would otherwise perform for the pro se party. It is unsurprising, then, that “pro se[ ] litigants challenge a judge's traditional role,” imperil their ability to “maintain[ ] . . . impartiality,” and put them in the difficult position of trying to “facilitate a meaningful coherent court hearing without providing legal assistance that turns the judge into an advocate.”Footnote 112
Defenses of judges’ substantive bench representation of pro se litigants tend (i) to encourage a relaxed account of what impartiality requiresFootnote 113 or instead (ii) to emphasize not that these judicial behaviors exhibit impartiality but instead that they promote fairness between the parties to the proceeding.Footnote 114
One natural thought to have about a judge providing substantive bench representation to pro se litigants is that, while the practice may appear to exhibit partiality, it is in fact better thought of as an impartiality-restoring procedural mechanism. Consider the alternative: were a judge not to assist a pro se litigant, they would in effect preclude that party from having meaningful access to the litigation forum. To exclude a party from having meaningful access to a litigation forum on the basis of their inability to conform to draconian legal procedures could quite reasonably be interpreted as a judge showing bias or favor toward the party represented by counsel just because they have counsel. Far from being an exhibition of partiality, the judge's substantive bench representation of a pro se litigant shows “humane concern” for that party, who would otherwise be dominated by opposing counsel on the basis of legal technicalities that have little bearing on the merits of the case. To do otherwise would be to fail to exhibit “humane concern . . . for both parties.”Footnote 115
But, let us now instead consider the perspective of those attorneys who object that “‘the court is trying to represent the pro se’”Footnote 116 and regard the practice of substantive bench representation as appearing to or in fact undermining a judge's impartiality by showing special bias or favor to the pro se party. Should a judge's substantive bench representation of a pro se litigant undermine the judge's impartiality or their appearance of impartiality, it may still be permissible if it can be justified in terms of its contribution to the overall fairness of the proceeding.
As stated, impartiality is only one of a number of values that contribute to the fairness of a legal proceeding. Another relevant for our present discussion is equality and, in particular, “equality of arms.”Footnote 117 Equality of arms is a value contemplated within many legal systems. Although it is not recognized as a constitutionally protected right in the United States, some have argued that it is immanent in the Sixth Amendment and, so, should be.Footnote 118 Equality of arms requires that there be a fair balance between the opportunities afforded to the parties involved in litigation. This could in some cases extend to helping one party to present its case. A sacrifice in the appearance of impartiality (through offering assistance to one of the parties) may serve to bolster the value of equality of arms.
Most cases of pro se litigation take place under markedly nonideal and unequal conditions. Pro se litigants tend to come into court as the relatively disadvantaged parties. The “playing field” between pro se litigants and their moneyed adversaries with counsel is not level.Footnote 119 The fact of this unequal starting position threatens to render the legal proceeding unfair to the pro se litigant.
So, one justification for departures from apparent impartiality in contexts of pro se litigation is this: although impartiality contributes to the fairness of a proceeding, it is not the only value that does so, and a sacrifice in apparent impartiality can be justified when (i) the background conditions are such that the proceeding would otherwise be substantively unfair to one of the parties and (ii) the apparently not-impartial judicial intervention will correct for these background conditions, diminishing the inequality between the parties, and, so, rendering the proceeding fair (or, at least, less unfair).
Assistance to a pro se litigant is only one form of substantive bench representation. The lessons from this example will generalize to other cases. There is a general background presumption against imperiling a judge's actual or even apparent impartiality in a legal proceeding. Impartiality partly constitutes the fairness of a legal proceeding. However, there are also other values that contribute to the fairness of a proceeding. So, in some cases, a sacrifice in impartiality might be justified by the gain in some other contributory value—like the equality of arms.
A point of clarification: I am not arguing that impartiality and equality of arms (nor any other contributing components of fairness) ought to be weighed against one another in the interest of maximizing the overall amount of fairness of a proceeding. Nor am I arguing that we can justify divergences from apparent impartiality in exigent circumstances when and because some other, competing value becomes necessary to promote instead. (One could, I imagine, structure the argument that way. But that is not my approach.) Rather, I am arguing: A fundamental value that must be promoted in an adversarial court proceeding is fairness, both substantive and procedural, to both (or in more complex cases, all) of the parties to that proceeding. Different types of proceedings are imperiled by different possible sources of unfairness. Because this is so, ensuring or restoring the fairness of different types of proceedings in light of the different possible sources of unfairness will require context-sensitive considerations concerning what, in fact, would ensure or restore the fairness of the proceeding. And the justification for pursuing a particular fairness-restoring course of action in a given case is not that it will maximize fairness but instead that, but for pursuing that course of action, the proceeding could not rightly be considered fair.
So, now, focusing more directly once again on the two particular fairness-promoting considerations before us—namely, impartiality and equality of arms: When and how can we justify divergences from the strictest notions of impartiality (again, understood as the appearance of partiality—since I doubt anyone besides grumbling opposing counsel could possibly think that showing special concern for pro se litigants is inconsistent with a judge in fact being impartial) in the interest of promoting equality of arms as a means of ensuring the overall fairness of a proceeding? Here, I offer four conditions that must be satisfied for divergences from strict impartiality to be permissible—these are necessary, not sufficient, conditions:
First, there must be (1) manifest background unfairness. That is, the background conditions must be such that it is reasonably foreseeable that, without judicial intervention of some sort, the proceedings will be manifestly unfair to one of the parties. This condition follows from the recognition that a fundamental value that must be promoted in an adversarial court proceeding is fairness, both substantive and procedural, to the parties. Only if this condition is satisfied should we next consider:
(1a) Foreseeable success: It must be reasonably foreseeable that the divergence from strict apparent impartiality will succeed in promoting fairness between the parties. Why? Because a judge's appearance of impartiality is, in the normal course of things, expected to partly constitute the overall fairness of adversarial court proceedings, so any measure that might imperil the appearance of impartiality should not be undertaken unless that measure is itself likely to bring the proceedings closer to in fact promoting fairness between the parties.
(1b) Counteracting intent: Any divergence must be undertaken with the intent of counteracting the manifest background unfairness. It matters not just that a judge promotes and restores the fairness of the proceeding. We care, too, about their reasons for undertaking their actions and care especially about their reasons for undertaking role-divergent actions.
(1c) Narrow tailoring: Any divergence should be exercised in a manner that is narrowly tailored to undermine the unfairness it is meant to correct, both (i) to avoid giving the impression that its practice is being abused by the judge for the purpose of smuggling personal favoritism or biases into the proceeding and (ii) to preserve the appearance of impartiality as far as possible.
Only if (1) is satisfied should (2)–(4) be contemplated.
(2) Procedural integrity: Connected to foreseeable success, divergences should not imperil other procedural aspects of the adversarial court proceedings. So, for instance, a judge ought not risk giving the appearance of partiality in a manner that is foreseeably likely to unduly influence jurors’ judgments of the case before them. This may in some cases require divergences to be undertaken outside of jurors’ earshot (although note that the in camera nature of this suggestion may be in tension with the transparency requirement discussed below). Why pursue procedural integrity? Because, as stated, the fairness of the proceeding is of paramount concern and many of the procedures for adversarial court proceedings take as one of their aims (although not their only aim) preserving a baseline of fairness between the parties. So, any divergence from the appearance of impartiality must be considered and, ultimately, justified with regard to its impact on the overall proceeding.
(3) Transparency: With some exceptions, including those contemplated in (2), divergences should be undertaken in a transparent and announced manner so as to promote public confidence in the judiciary. This transparency requirement obliges judges to be able to give reasons for whatever assistance they provide to pro se litigants or other disadvantaged parties–reasons that would, one hopes, on their own restore the audience's impression that the judge is not acting partially but is simply working to promote equality of arms between the parties, which is (as stated) not inconsistent with impartiality. Note that the transparency requirement is not an ex ante requirement, particularly for the reasons contemplated in (2)—namely that, in some cases, ex ante transparent disclosures could negatively impact the integrity of the proceedings (biasing jurors, for instance). And, at least with regard to juries, this is not a radical departure from courts’ practices: courts often curate jurors’ information environments to prevent them from prejudging the case about which they will deliberate and to protect them from avoidable sources of bias.
(4) Public confidence: Divergences from apparent impartiality should be undertaken in a manner that is not foreseeably likely to mar public confidence in the court. There is a connection here to the transparency requirement: one proactive measure a court can take to avoid the public's loss of confidence in the court based on its divergence from the appearance of impartiality is to explain the divergence's fairness-restoring ends in a public and accessible manner—through opinions, for instance. However, (4) is the weakest of the conditions enumerated here. It should be pursued to the extent compatible with satisfying (1) through (3).
What I have said here about justifiable divergences from the appearance of impartiality will apply beyond the context of bench representation and may justify other sorts of judicial interventions that would promote fairness in a proceeding at the expense of apparent impartiality. I leave those applications for another day.
3. Substitutive Bench Representation
Substitutive bench representation occurs when the judge assumes the role of a party to the proceeding or substitutes their own judgment for the judgment of one of the parties.
Here, I will primarily consider one particularly controversial example of substitutive bench representation: sua sponte issue-raising. When a judge raises issues sua sponte, they engage in both role substitution and judgment substitution: they insert themself into the role of one or more of the parties by raising an issue that neither party has raised and substitute their judgment for the parties’ judgment concerning which issues ought to be before the court. I will also discuss further concerns that arise when a judge decides a case on the basis of issues raised sua sponte.
a. Role Substitution
One concern commonly raised about the role substitution aspect of sua sponte decision-making is that it can undermine the adversarial process. Traditionally, the adversarial process is conceived as comprising at least these two main elements: neutral and passive decisionmakers and party presentation of evidence and arguments.Footnote 120 Many justifications are given for the adversarial process, including (i) a concern that decisionmakers who are not passive will be perceived as partial, which will undermine public trust in the judicial system as a whole,Footnote 121 (ii) a concern that the judge who does not remain neutral and disinterested imperils their moral authority as a judge—they “would be sacrificing [their] moral position as a judge for that of [a] legislator,”Footnote 122 and (iii) the prediction that courts are more likely to reach correct decisions by reflecting on the arguments and evidence adduced by parties than they would be were they to develop the arguments and evidence on their own.Footnote 123
Within this adversarial process, judges are meant to play the institutional role of the neutral and passive decisionmaker. But the judge who enters into the role meant for another party by, say, raising an issue that neither party has raised, will (it is thought) be perceived as partial, undermining the fairness of the proceeding, and thereby undermining public trust in the judicial system as a whole. Note that this concern about the preservation of distinct roles between judge and parties in an adversarial system can stand independently of particular considerations as to why a judge may have chosen to enter the role reserved for another. (Indeed, there are many good reasons for judges to raise issues not raised by the parties, including subject matter jurisdiction, giving full consideration to matters of public concern, avoiding plain error, protecting pro se litigants, because the issue is related to another issue already before the court, or, broadly, in the interest of justice.Footnote 124) The concern at issue is simply that the judge, by their very role substitution, undermines core values that the distinction between roles is meant to preserve in an adversarial system.
Still further concerns about role substitution arise when the judge's role substitution is undertaken in a manner that suggests that they are displacing the party (as when the VOP court judge in Commonwealth v. Colon questioned witnesses in lieu and over the objections of the prosecution). In cases of displacement, the party has reason to complain that they did not have an opportunity to be heard, because someone acted in their stead and against their wishes. Or, instead, it may be that the judge is viewed to be partial when they throw the weight of their position as judge behind a particular party—giving that party special favor by, in effect, becoming that party.
It is pro tanto wrong for a judge to engage in role substitution with other parties to the proceeding—it undermines impartiality (imperiling the fairness of the proceeding) and gambles with public trust in the judicial system as a whole. In such cases, to override the general prohibition on such role substitution, the judge must be able to justify why the role substitution is nevertheless permissible in the particular case. They might do so by, for instance, arguing that their displacing a party promotes the overall substantive and procedural fairness of the proceeding—in which case, they would aim to provide justifications that satisfy conditions (1)–(4) discussed in Section IV.B.2.
b. Judgment Substitution
It is difficult to argue that judges ought not, in the normal course of their responsibilities, substitute their own judgment for the judgment of the parties. This is something we expect judges to do, at least when they are deciding which party's arguments and evidence should prevail at the conclusion of a legal proceeding. Still, there are limits on what judgment may be substituted, and when.
One of the chief concerns about sua sponte decision-making (wherein a judge decides a case on the basis of issues raised sua sponte) is that it is inconsistent with fundamental principles of due process (violating the Fifth and Fourteenth Amendments of the U.S. Constitution) because it deprives parties of “the right ‘to be heard’—that is, an opportunity to present objections and arguments with regard to governmental actions that may result in a deprivation of their life, liberty, or property.”Footnote 125 Although we expect that courts will have the last word in the adjudication of disputes between parties, we also expect the parties to have some say in between. When a court substitutes their judgment for the parties’ by not merely raising an issue sua sponte but also deciding the case on the basis of that issue, the parties are not given a meaningful opportunity to be heard—violating those parties’ due process rights. This seems to suggest that judicial judgment substitution is at least in some cases pro tanto wrong, and so requires remediation or justification. Some courts aim to remedy this wrong by asking parties to provide supplemental briefs on the new issues.Footnote 126 Here, the concern that parties will be subject to judgments without the protection of their due process rights is allayed by the assurance that their voices will be heard in the supplemental briefs. (There are, of course, arguments against supplemental briefing.Footnote 127 I will set those aside.)
What justification might be given for a judge substituting their judgment for the parties’, deciding a case on that basis, and not in the process asking for party input as to the novel issue raised? As discussed, there are many good reasons why courts raise issues sua sponte, and in particular cases those reasons may further justify a judge's decision to substitute their judgment by deciding the case on the basis of issues raised sua sponte, as well. What is needed in such cases is a justification that explains how due process has been preserved or, if it has not, why sua sponte decision-making was nevertheless required.
C. Taking Stock
From these particular considerations concerning different forms of bench representation, we glean three generalizations about the ethics of bench representation:
First, those forms of bench representation that (i) are mandated by law and (ii) leave little about their implementation up to a judge's discretion raise the fewest ethical concerns. These forms of descriptive bench representation do put the judge in a representative position, but it is one that is carefully limited in scope and does not seem to raise concerns about a judge's showing favor or bias to either party.
Second, neither descriptive nor substantive bench representation appears to imperil the parties’ due process right to be heard. Indeed, the roles of mouthpiece and interpretive bench representatives are intended to amplify rather than mute the parties’ voices. Similarly, the substantive bench representative who, for instance, assists pro se litigants, augments rather than stifles the represented party's voice. By contrast, both forms of substitutive bench representation raise concerns about whether they impede the fulfillment of a party's right to be heard.
Third, both substantive bench representation and role substitutive bench representation raise concerns about whether the judge engaged in the practice is able to remain impartial or is able to preserve the appearance of impartiality. In these cases, the concern is that the judge, by representing the party, appears to favor the interests of that party over those of their adversary. In some cases—like special judicial assistance to pro se litigants—this concern is ameliorated by looking at the bench representation in the context of the overall proceeding. When, for instance, the background conditions are such that the litigation would be markedly unfair to one party absent bench representation, reasonable departures from strict impartiality may be justified by the contributions those departures make to the promotion of other values essential to the overall fairness of a proceeding, like the equality of arms and the right to be heard. In other cases—like raising issues or making decisions sua sponte—there is a concern about the looming specter of partiality that is not in all cases defeated just by pointing to nonideal background conditions. Judges must in these cases be able to provide special justification for taking actions that threaten to undermine the appearance of impartiality.
V. Conclusion
In the foregoing, I have shown that the perennial question as to whether judges are representatives can be answered in a new way simply by giving careful attention to the everyday work of the courts. In Section II, I discussed how courts and scholars have traditionally characterized judges as representatives. In Section III, I introduced an overlooked but foundational form of judicial representation—bench representation. I showed that there are many ways that judges are either required or permitted to serve as representatives of the parties before them in adversarial proceedings. Bench representation is more proximate to the everyday work of the judiciary and more personal to the parties (who entrust some of the most challenging moments of their lives to the judges they come before) than the metaphorical conceptions of judicial representation discussed in Section II. In Section IV, I explored some novel normative considerations that emerge by looking at this underexplored but ubiquitous judicial practice.
Although the account offered here is focused on the particular context of the judiciary, it offers insights for theories of representation more generally. Many of our traditional notions of representation implicitly (if not overtly) assume that representatives are meant to be partial to the concerns of those they represent. If I am your representative in a context, surely you would expect me to show some favor toward your interests, in some sense, in that context. But that is precisely what we do not want judges to do—we do not want them to take on one party's interests as their own, at least not to the exclusion of the other party's interests. One of the insights of this article is that one may be an impartial representative—that is, one can give voice to another's concerns or act in the furtherance of their interests (by, say, preserving their presumption of innocence or acting as their legal representative in order to help them adduce evidence sufficient to make their case) without championing or even appearing to champion their ultimate ends.Footnote 128
Competing interests
The author declares none.
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