Deliberating Making Bad Decisions to Maintain the Appearance of Fairness: Merchan Edition?

Is New York's Justice Juan Merchan playing games to maintain the appearance of being evenhanded?  More generally, do judges have the obligation (or at least a good reason) to take account of how often they are ruling in favor of one side or the other during a trial, being careful to appear to be unbiased by balancing the numbers of favorable and unfavorable rulings so that they are roughly equal?

I never thought so, but there is at least some possibility that judges could reasonably feel the need to play that game.  Why?  Because some appellate judges might think that there is some requirement to show that neither side is winning every point, and trial judges might worry that their decisions will be overturned if they always take one side over the other.

To be clear, it is not accurate to say that a fair-minded judge is "taking one side" when ruling on any particular question.  Were I to announce that, say, an academic paper arguing in favor of regressive tax cuts is well written, I would not be taking sides with the paper's author in any meaningful sense.  And even if someone accused the author of committing plagiarism in writing the paper, I would not be taking sides with the author if I concluded that there was no evidence of plagiarism.  And that would be just as true if the paper in question advanced a policy position with which I did not vehemently disagree.

I raise this question because I received a thought-provoking response to my most recent Dorf on Law column, where I argued that both President Biden and Justice Merchan have made serious mistakes by bending over backward again and again to avoid doing what they seem to wish they could have done from the beginning: in Biden's case, pressing Benjamin Netanyahu to change what his government is doing in Gaza, and in Merchan's case, treating Donald Trump the way the judge would treat any other defendant who violates the court's orders.

My argument was that the audience for both men seems to be the public at large.  Biden seems to have wanted to be able to say that he tried and tried and tried to convince Netanyahu to change, and only with the greatest reluctance did he (Biden) conclude that he had to withhold a shipment of offensive weapons from reaching Netanyahu's government.  Merchan told Trump in open court that he was giving him special treatment (not in those exact words, of course, but that is what he communicated) because Trump is a special defendant, which was a very Biden-like effort to say to the public at large: "Look at how much slack I gave him, but if he absolutely forces my hand, I'll be harsher with him."

Notably, Trump has stopped violating the court's orders for now, having found what appears to be a workaround by having sycophants stand outside the courthouse and say embarrassingly Trumpian things that Trump cannot say without risking more fines or jail time.  Whether that workaround is legal is an interesting question that I will not try to answer here, although I will note that stopping it strikes me as the judicial equivalent of calling a penalty on a football team because of the actions of its fans.  That does occasionally happen, but it is understandably rare.  In any case, the trial will be over very soon, so it seems unlikely that that question will ever be raised in court, much less decided.

Setting that issue aside, it is now worth asking whether Trump's willingness ultimately to comply (at least in form) with the court's orders validates the strategy that I am imputing to the judge.  After all, if it turns out never to be necessary to jail Trump, then restraint on the judge's part will have avoided a big mess, right?  Perhaps, but that does not mean that there was no cost to giving Trump special treatment.  The public has now been told that there truly are different rules for political elites, and we do not know whether things would have gone better or worse if the judge had applied the same standards to Trump that he applies to every other defendant.

In any event, I am willing to leave it as an open question whether Justice Merchan's strategy "worked" in the sense of causing a better outcome than we otherwise would have seen.  The insightful email that I received raises the question that I posed at the top of this column, which is whether the judge was playing to the appellate court rather than to the public at large.  Is that true?  And if it is, what are the implications of a judge's decision to go out of his way to look fair by making decisions not on the merits of each issue but by consciously taking account of the larger context of the totality of all of his decisions?

(As an aside, I should note that anytime I write about the post-October 7 situation in Gaza and Israel, I brace myself for strong and potentially hostile responses.  I was thus relieved when the emailer told me that he disagreed with my column, but "[a]s a Jew who is extremely tired of Biden's public embrace of Netanyahu, I appreciated your take on how Biden has taken much more restraint than he should have. However, I disagree with your argument surrounding Justice Merchan."  These are fraught times, so that was a pleasant turn of events.)

In any case, the emailer made the point that the judge ruled against Trump in nine out of the initial ten alleged violations of the gag order, and he ruled against Trump again two days later.  The judge specifically noted that he did not jail Trump after the additional violation because Trump had done what he had done before the judge had ruled against him on the other nine counts.  That is, Justice Merchan treated Trump as not having had adequate notice that further violations would result in ramped up consequences, possibly including jail time.

Notably, however, that act of restraint on the judge's part only makes sense if he viewed himself as having to treat Trump differently than all other defendants.  That is, the judge seems to believe that only after he had said to Trump, "Going forward, you're really going to get it," could Trump be held to account.  That strikes me as more than a bit odd, because the law has been clear all along that jail is an option, so it is not as though Trump could say, "But I didn't know that I could go to jail!"  A reasonable judge with any other defendant could have said something like this: "You know, two days ago I ruled that you had violated my order nine times, yet I decided only to impose financial penalties.  But now I see that you've been acting even worse than I thought, so now you have to face harsher consequences."  An enough-is-enough response does not require extra notice.

Again, Justice Merchan had already made clear that he was not holding Trump to normal expectations.  He decided to extend his leniency still further by holding himself to a high standard of giving notice, but that was his choice, not a requirement of the law (or of justice more generally).  My point in Tuesday's column was that this fundamental approach was arguably wrongheaded, but I understand that once he was on that path, the judge might well decide to continue to prove his "fairness" by continuing to give Trump added dollops of the same type of special treatment that Trump had already enjoyed.

Putting all of that aside, what might I say about the possibility that Justice Merchan was not playing to the public but instead was trying to armor-plate his trial's outcome against the possibility of reversal?  The emailer noted that the judge has issued many rulings against Trump and has even admonished Trump's lawyers for being tendentious, going on to suggest that the judge made a conscious decision to avoid being seen as biased against Trump.

I have no way of knowing whether this is what Justice Merchan is thinking.  It is hardly a secret that judges hate to be reversed on appeal, so this is at least a good starting point.  However, the question is whether the fundamental judicial approach that I have described and criticized -- consciously violating the notion that all are equal before the law -- is somehow defensible (or at least explainable) not as a matter of trying to look good to the public but trying to look non-reversible to the Appellate Division.

Again, that might indeed be what this judge is doing, just as it might be what many judges do every day.  If so, however, then I have a few reactions.  As a matter of strategy, it is possible that this will not even work.  After all, appellate judges know (or should know) that a series of rulings that goes against one party is not proof of bias.  Even if the last 99 tosses of a coin have turned up heads, a fair coin still has an even chance of turning up heads again.

No judge should sprinkle in unmerited wins for one side for appearance's sake, because that is the very definition of injustice.  Appeals courts could and should view that with great disfavor.  To change from coin tossing to the most tired metaphor in the law, are judges not supposed to be calling balls and strikes because they are balls or strikes, not because there have been too many of one or the other pitches thrown recently?

A number of years ago, one of my students appealed her grade in the class, claiming that I was biased against her, and she provided some interesting facts to support her claim.  First, I had given her a low grade.  Second, there was another student in the class to whom I gave a high grade.  Third, I had serially praised that other student's comments in class, whereas I had not praised other students as often.  (She had never spoken up in class, so she could only use her classmates as surrogates.)  Trump has always reminded me of that student, because he always insists that the only way he can lose is if the game is rigged against him.  In his mind, nothing is "on the merits" if he loses.  Anyone trying to "look fair" in the face of that mindset is playing a sucker's game.

It is, however, possible that some -- maybe even many -- appellate judges in fact would be willing to engage in the kind of reasoning that says, "The trial judge ruled against the defendant every time, so he must be biased."  Certainly from what I could observe during my clerkship regarding the other judges on the Tenth Circuit, there was a surprising and disheartening amount of sloppy and motivated thinking going on in their heads (an observation that does not apply to my judge).  Maybe trial court judges truly think that they need to make prophylactic rulings in the knowledge that the higher courts are often not the Platonic ideal of justice.

Even if that is true, however, once one starts down that road, the better judges would most likely try to make the "balancing" decisions relatively trivial, with an eye toward saying that they ruled 15 times for the prosecution and 11 times for the defense but knowing that those eleven pro-defense rulings were meaningless.  If that is the strategy, however, is it not possible that the appellate judges could see through the ruse?  Does a trial judge then have to ensure that there are some "big" rulings that favor the defendant?  If so, we are now truly playing with fire.

To be clear, I am not saying that the person who emailed me was approving of what he thought Justice Merchan has been doing.  Rather, I took the suggestion as descriptive rather than prescriptive, hypothesizing that the judge's decision to bend over backward for Trump was not a public relations ploy, as I had claimed.

And that might be true as a descriptive matter.  If so, however, then it is possible that Trump is receiving special treatment for a very destructive reason.  Before any of the indictments had been handed down against Trump, some people (including me) argued that it was wrong to think that because prosecuting Trump could "look political," it would be better to be apolitical and thus not prosecute Trump.  In a December 2020 column, I wrote this:

Just as it is wrong for Trump to be threatening to prosecute people for political reasons, so it is wrong for Biden (or anyone else) to promise not to prosecute people for political reasons.  This idea, moreover, is not limited to refusals to prosecute one's political allies, because it is just as corrosive to have a president direct the people's lawyers not to prosecute a political foe for political reasons.  In each case, the wrongdoer is getting special treatment from the president as a matter of political intervention in the criminal justice system.

The same idea is present here.  It would be bad for a judge to rule against a defendant without a basis in law or fact, but it would also be bad for a judge to rule for a defendant for some reason other than the merits of the matter, most especially including ruling for a defendant "just to give him a win after a string of losses."  Again, however, it is possible that appellate judges are not philosopher kings.  And if Justice Merchan is playing to an audience that he thinks will be less inclined to reverse his rulings if he goes out of his way to rule for Defendant Trump occasionally, then one can only hope that the judge is choosing his unsupportable decisions wisely -- or at least skillfully.