We suffer from a naive conviction that judges are supposed to be completely objective. We somehow believe that they come to the bench — to the antiseptic venue of a courtroom — stripped of any biases, any prejudgments and any idiosyncratic views of how society should work. One supposes that in Thomas More’s Utopia, judicial robots could apply the law without fear or favor, and justice could be meted out as the blindfolded lady who holds the scales in her hand does, impervious to that which swirls about her.
Judges, frankly, are not blind to the world. Indeed, our great jurist Benjamin N. Cardozo acknowledged the unthinkable nearly 100 years ago: “The great tides and currents which engulf the rest of men, do not turn aside in their course, and pass judges by.” Nor should we want them to.
We actually want judges who live lives, who read newspapers, who participate in legal and ethical extrajudicial activities. In other words, we want judges who have come to know about life and who are willing to acknowledge that their experiences and influences may inform the way in which they look at the litigations before them. Don’t we want judges who, at least sometimes, use their judicial authority (albeit within the dictates of the law) with compassion, to improve life for both the rich and poor, the haves and the have-nots?
John Adams told us that we want “a government of laws and not of man” — probably the touchstone of judicial independence. Of course we want judges to apply the law, but, completely consistent with the need for judicial independence, we don’t want them to pretend they are hermits unencumbered by thought or experience. Rather, shouldn’t we want our judges to give voice to the law, fully recognizing that their voices are different one from the other, and their differences are often based on their disparate human experience? We don’t want a choir with voices that are all the same.
Don’t we want judges who are independent and who are able to consider (and perhaps discard) their outside influences while being faithful to the law? Isn’t that why our Constitution gives federal judges life tenure — so that they can make decisions without fear of reprisal or punishment? Judges should not — must not – be forced to render unpopular decisions in an atmosphere where a media frenzy could cause them to be removed from the bench.
We can all agree that a judge should not speak publicly about a case before her, and should not use her judicial robes to garner favor. But why can’t a judge tell the public what she thinks? Why would we deprive ourselves of contributions from some of the most brilliant minds in our society merely because they serve our society in judicial robes?
Speaking out does not mean a judge won’t be able to apply the law. Aren’t we all past the stage where we question whether a black judge can decide a civil rights issue, a gay judge a same-sex marriage case, a Jewish judge a plot to bomb the World Trade Center, or a Catholic judge an abortion case? Judges are trained to, and mostly do, rein in their “priors” — to coin a phrase from one of America’s most outspokenly thoughtful judges, Richard Posner of the U.S. Court of Appeals for the Seventh Circuit. Are Justice Antonin Scalia, Justice Ruth Bader Ginsburg, or, for that matter, Judge Posner, any less independent because they speak out on public issues, often so provocatively? In fact, are there any judges more independent than they are?
And here is the flip side. What could we possibly gain — as lawyer or litigant – by pretending a judge does not have an opinion on a topic before her? Wouldn’t we rather know what that opinion is so we can assemble the tools to challenge the judge’s beliefs, to address the judge on her own terms?
Our canons of judicial ethics tell us judges can write, teach and participate in law-related activities, but with limitations not imposed on the rest of us – with even more stringent limitations on what they can say in the non-law-related milieu. These restrictions are not imposed on politicians, whether in office or out, and they (yes, with judicial checks and balances) make our laws. Why, then, should our canons of judicial ethics require judges – those who are not beholden to other branches of the government — to remain mute unless speaking through the lens of a decision or dissent? And does the veil of secrecy surrounding judges — and judging — actually help anyone?
Isn’t it time to look at our rules of judicial ethics and consider why they are in effect; why we insist on trying to muzzle some of the best and brightest minds rather than allow them to speak freely on the issues of the day, as long as it doesn’t interfere with the propriety of their judging?
Joel Cohen is the the author of “Blindfolds Off: Judges on How They Decide.”
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