Dear Wondering,
It was wholly a pleasure to receive your thoughtful inquiry in response to my opinion — it might even be called my obsession — about the danger of judges taking part in political debate. Judges can be sly about it: Some take political stands while claiming to be only discussing the general philosophy of the law.
But where, you ask, does philosophizing end and politicking begin? Granted, the border between politics and law has always been hazy. So where would I suggest we draw the line, you want to know. What's a judge to do when asked to give a lecture or address a civic group? How far can he go when the subject of politics arises? Good questions.
My answer: Judges would be well advised to indulge in as little political comment as decently possible.
Here's what I'd advise their honors: Stock up on inoffensive platitudes, and distribute them generously. Learn to be only ceremonial in public discourse rather than colorful or provocative or "interesting," no matter how clever or eloquent a judge may think he is. Cultivate dullness. Aim for the banal. Any speech by a judge should be like the perfect gentleman's tie: forgettable. Leave the flashy comments to newspaper columnists; in exchange we'll promise not to lay down the law.
It was said of Dwight Eisenhower that as president he would go through his speechwriters' drafts and strike every memorable phrase. It drove them crazy, but Ike realized he was more than a politician; he was a head of state. He was president of all the people, not just his own partisans.
It takes a wise man to keep his wisdom hidden. The country was full of intellectuals during the Eisenhower years who dismissed the 33rd president of the United States as that golfer in the White House. Years later they'd scratch their heads trying to figure out why he'd been such a successful president.
Like presidents, judges need to remember that they represent not only themselves but the impartial rule of law. They shouldn't be speaking out of school or, in their case, out of the courtroom.
But who would want a blanket prohibition against judges' speaking or writing off the bench? Think of all that would be lost, including the splendid speeches, essays, and lectures of the well-named Learned Hand. ("The spirit of liberty is the spirit which is not too sure it is right.")
Judgment is all in these matters, both on and off the bench. Which figures, since what we're discussing is the proper behavior of judges.
There is no way to codify propriety; the best we can do is lay down some general rules of etiquette. As in other matters, the right choice of words and actions may depend on the context. To use a judicial — and judicious — phrase, circumstances alter cases.
A nominee for the U.S. Supreme Court, for example, should be able to make his judicial philosophy sufficiently clear, but not too clear — or he will run the risk of prejudging the legal controversies awaiting him.
It can be done. See the discreet Senate testimony of both Chief Justice John Roberts and Associate Justice Samuel Alito.
Contrast their answers to some of the showier questions put to them by their inquisitors.
There may be no clear answer to your question about where to draw the line when it comes to public statements by members of the judiciary, but examples abound, good and bad:
Clarence Thomas, another associate justice of the high court, has long recognized silence as a judge's best friend. He's been something of a model of judicial restraint on and off the bench.
Then there are the examples to beware — like Antonin Scalia, who had to recuse himself from at least one important case because he got carried away on the speaking platform.
The worst offender — there's considerable competition for that dubious distinction — may be His Honor Stephen Breyer, who's written an entire, windy book that reads like "The Orthodox Liberal's Guide to Interpreting, Expounding and Elucidating the Constitution of the United States." Here's proof in writing that a judge can be dull and still step over the line.
Here in Arkansas, we've got a judge on the Court of Appeals (the Hon. Wendell Griffen) who isn't at all dull. Unfortunately. Judge Griffen may never have met a political topic on which he couldn't deliver a real stemwinder of a speech.
How do we tell when a judge has gone too far in his comments off the bench? Usually no one has to tell us; it's evident as soon as the ill-considered words are said. As an associate justice of the U.S. Supreme Court, Potter Stewart, once said about pornography, we know it when we see it. Or hear it.
Inky Wretch
