Mystery judges

Wisconsin Right to Life and a group of individual plaintiffs have filed a lawsuit (to see the complaint follow the judicial accountability link) challenging certain judicial canons that prohibit candidates for judicial office from commenting on matters that may become before him or her and that require recusal if a judge has "committed" himself or herself on a question. There is a rationale for the rules. A judge is supposed to listen hard to the arguments made by the lawyers and give them full consideration.

But no one who is qualified for high judicial office does not have an opinion on the day's legal controversies. If you tell me, for example, that you have no view on Roe v. Wade, then I can only conclude that you haven't thought about it and, if you haven't thought about it, you have no business aspiring to high judicial office.

While it may be that candidates for judicial office should have opinions that they don't talk about, this seems inconsistent with the reality of high courts today. Lawyers who are objectively well qualified may have radically different views of the roles of a judge and the manner in which legal texts are to be interpreted. It is not really possible to make an informed judgment about a candidate without getting at this.

This is particularily true when judges are elected (something that I generally oppose) and nuanced discussions of abstract philosophy are not possible. Candidates are left to communicate their stances (often inaccurately) through code words and often focus on things that have little to do with the office they are running for. In next spring's supreme court election, for example, both candidates may say they are "tough on crime" and maybe they are. But that tells you next to nothing about what they will do on the Supreme Court.

The canons rest, in part, on the notion that a person, once committed, won't change his or her mind. But if that's the problem, they fall short. They don't prohibit having an opinion, they just say that you shouldn't tell anyone what it is.

This notion is not necessarily correct. I am not a judge but I do serve as a referee (essentially a trial court judge) in a cases where disciplinary charges have been brought against attorneys. I often find myself changing my mind in the course of writing a report as I consider the arguments and review the evidence. The annals of the Supreme Court are full of stories of Justices who have "evolved" in office. It is this type of open-mindedness - and not closed lips - that we should seek.