The erupting controversy over the manner in which Judge Rosemarie Aquilina conducted sex abuser Larry Nassar’s criminal sentencing is an important one. Aquilina has both been heralded as a compassionate champion of victims’ rights and derided as a grandstander who compromised the integrity of the criminal justice system. So, which is she — villain or saint?
The question is actually beside the point. What’s important is the debate itself, because it highlights a crucial element of a healthy democracy: the existence of a functioning system of accountability for public actors.
Aquilina’s predicament is not new. Unfolding on the national stage is a similar phenomenon: career public servants being scrutinized and critiqued for alleged “bias.”
{mosads}In Aquilina’s case, critics are right to point out that judges are expected to call balls and strikes based strictly on the facts in the record and the governing law. In openly condemning Nassar as a “monster” and telling him “I just signed your death warrant,” Aquilina departed from these traditional tools of the judicial trade and made her personal views known.
She made known, for example, that she thinks Nassar is a despicable person who should go to jail for life for the horrific sex crimes he pled guilty to committing as a USA gymnastics doctor.
By allowing over 150 victims to tell their stories in open court, Aquilina also made clear that she is firmly on the side of Nassar’s victims. To her supporters, Aquilina created a rare public forum of safety and healing within a culture that systemically tolerates misogyny, objectification, and sexual abuse of women and girls. To her critics, she crossed a professional and ethical line — to the potential detriment of the criminal justice system as a whole.
The reality is that judges — like legislators and U.S. presidents and prosecutors and FBI agents — are human beings with feelings, life experiences, points of view — and yes, biases. This is a good thing. Few would argue that computers would be better at making policy decisions or resolving court cases. Nor do we want a cadre of judges, prosecutors and legislators who are pathologically dissociated from society, from other human beings, and from themselves. Bias is baked into the system; the question is how to control for it.
On a macro scale, our system of government controls for bias by dividing up power into three branches — the executive, the legislative, and the judicial — and amongst a multitude of sovereigns, the federal government and the various states. Our particular form of democracy was founded on the premise that people ineluctably pursue selfish goals, and that those in power will want more power.
When too much power accumulates in the hands of one person, the theory goes, abuses inevitably follow. Such abuses take the form of potential infringements upon individual rights — the rights, for example, of people like Nassar who find themselves up against the full force of a government poised to take his freedoms away.
As a society, we accept that our government has this power because we don’t want to live in an environment where preying on children carries no consequences. Thus, when a person harms a child that way, we are comfortable with the notion that he effectively cedes his individual right to freedom. The rule of law shores up that social norm, which is implemented by judges through the adjudicative process.
So, how does the system control for the personal biases of those with the power to put someone like Nassar in jail? Well, in a number of ways. Unlike federal judges, Aquilina was elected to a six-year term as a state court judge. When that term is up, Michigan voters can decide whether she is the kind of person they want to keep on the bench.
Additionally, Aquilina is necessarily bound by the facts in Nassar’s case. Even elected judges cannot talk about a case in private to donors or other interested third parties. Legislators, by contrast, are free to take into account all kinds of “off the record” information in making decisions. The public doesn’t get to know what really drives policymakers.
While legislators make laws behind closed doors, judges are stuck to grapple with statutes, regulations and judicial decisions that already exist. Higher-order appellate judges also stand ready to grade a judge’s papers, so to speak. If Aquilina’s papers flunk, the party who “lost” the case before her will get a renewed chance to have his day in court.
Of course, this system is imperfect and injustices occur. Still, the question we should be asking about people like Aquilina is not whether she is a villain or a saint but, rather, whether the structure of our system of government is properly functioning to control for her inevitable personal biases. Even more important: Is the structure holding government actors accountable when biases morph into wrongdoing and even corruption?
For Aquilina, there is nothing about her story that gives cause for such alarm. But for many others who hold positions of immense public power today — whose actions are not subject to a direct appeal to a higher authority — one cannot be so sure.
Kimberly Wehle is a professor of Law at the University of Baltimore School of Law, former assistant United States attorney and associate independent counsel in the Whitewater Investigation and author of the forthcoming book, “The Outsourced Constitution: How Public Power in Private Hands Erodes Democracy.”