Speaking for Others from the Bench

• In Event: Democracy and Representation

Abstract

In this paper, I introduce and examine the novel concept of bench representation. Jurists and scholars have extensively examined whether judges are or ought to be considered symbolic representatives of abstract concepts (for instance, the law, equality, or justice), representatives of society as a whole, or descriptive representatives of the social groups from which they hail. Little attention has been paid to the question whether judges act as representatives for the parties before them through their everyday work on the bench. This paper examines that question. Bench representation occurs when a judge, through statements or actions undertaken during the performance of official duties, speaks or acts for a party to the proceeding before them. I argue that serving as a bench representative is a common and valuable feature of what it is to be a judge and, despite appearances, usually undermines neither impartiality nor fairness.

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. Throughout the hearing, Judge Aquilina clearly, unambiguously, and intentionally aligned herself with Nassar’s victims. 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. By so doing, Judge Aquilina served as a bench representative for Nassar’s many victims.

Many, particularly the media and a quickly built fanbase, say that Judge Aquilina “reinvented what it is to be a judge.” 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” (Ifill 1997). 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 by situating that debate in a more general juridical practice that is, I argue, 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. Better understanding these relationships, in turn, helps us better understand ourselves as democratic citizens.

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 by looking at this underexplored but ubiquitous judicial practice. Section V concludes.

Author

• Wendy Salkin, Stanford University