In 2000 the Florida Supreme Court gave the presidency to Democrat Al Gore. Five judges on the U.S. Supreme Court reversed the Florida court and gave the presidency to Republican George W. Bush.
Bush won by two electoral votes. Gore barely won the popular vote. Three of the justices of the U.S. Supreme Court who dissented, John Stevens, David Souter and Ruth Bader Ginsburg, wrote:
“Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”
Judges may make mistakes. Judges may be ignorant or lazy or may have any number of faults. The one characteristic judges must not have is a public perception of prejudice for or against persons or beliefs.
The only thing judges must bring to their role in our government is the ability to engender public confidence in the integrity of their decisions. We may, and I often do, disagree with judicial decisions (by other judges of course). However, if we have confidence the judges acted impartially, we can accept even bad rulings and move on.
That is why Canon 4 of the Code of Judicial Conduct which all judges should follow requires:
“A Judge or candidate for Judicial Office Shall not Engage in Political or Campaign Activity that is Inconsistent with the Independence, Integrity, or Impartiality of the Judiciary.”
The Code also prohibits a judge from publicly, e.g. in a newspaper column, endorsing or opposing a candidate for public office.
These ethical proscriptions come to mind as I am currently engaged in helping to teach an internet course to judges for the National Judicial College. Judges from several states are participating as students or faculty. As with much of the judicial education in which I have been involved, in this course there is a great deal of side banter about many topics. In this current presidential campaign cycle politics is unavoidable. But unlike non-judicial conversations where my friends and family do not hesitate to state that one candidate is less than desired while the other must be elected, with judges I am reminded of the attitude Romeo’s friend, Mercutio had.
You may recall that in William Shakespeare’s play Romeo and Juliet the two families, Romeo’s Montagues and Juliet’s Capulets, were constantly feuding. In Act III, scene 1 Mercutio is stabbed by Juliet’s relative, Tybalt. As Mercutio lies dying he curses both sides by calling for, “A plague on both of your houses”. That pretty well sums up the ethical positions of my judicial colleagues.