Bench Memos

Law & the Courts

Why Is the Federal Judicial Center Sponsoring One-Sided Panels on Hotly Contested Issues?

I’ve learned that the Federal Judicial Center—“the research and education agency of the judicial branch of the U.S. government”—is sponsoring a 90-minute webinar on October 9 on “Election Litigation During the COVID-19 Pandemic.” The webinar is being held for all federal district judges and their law clerks in anticipation of litigation in connection with the upcoming election.

I’m very surprised to see that the FJC has compiled a very one-sided panel for this presentation: The panelists are liberal law professors Richard Hasen and Edward Foley and federal district judge Benita Y. Pearson, an Obama appointee.

My point, I emphasize, is not to contest the qualifications of any of the panelists. I wonder, rather, why, on such a hot-button issue on which the FJC obviously expects high-profile and time-sensitive litigation with partisan implications, the FJC wouldn’t undertake to present panelists with broadly competing perspectives. (This review by law professor Bradley A. Smith of a recent book by Hasen illustrates the insights that such competing perspectives might provide.) The composition of the panel instead suggests to the audience that the ground for reasonable debate lies in whatever distance exists between Hasen and Foley.

Alas, the FJC seems to be making a habit of sponsoring one-sided liberal panels. Just two weeks ago, it held a “Court Web” program (for all federal judges and judicial employees) on the topic of implicit bias. As the program’s description indicates, the term implicit bias refers to “how unconscious assumptions can influence the ways in which people perceive facts and draw inferences.”

Under such an expansive definition, I don’t doubt that we all have our own implicit biases. But there is vigorous debate over what social psychology has been able to establish about implicit bias, and there is particular controversy over the soundness of the widely used Implicit Association Test. What role, if any, supposed evidence of implicit bias should play in, say, employment-discrimination cases is hotly disputed.

So you’d think that any worthwhile panel on implicit bias might be designed to draw out the different sides of these disputes. Instead, the three panelists on the FJC program—Sixth Circuit judge Bernice Donald, Stanford professor Jennifer Eberhardt, and retired federal judge (and former FJC director) Jeremy Fogel—appear to be broadly allied in their perspectives on the topic. (Justice Breyer hailed Fogel for his leadership in having the FJC “put an emphasis on making judges aware of such things as implicit bias.”)

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