Judicial INDEPENDENCE, Judicial SELECTION, and the FIRST AMENDMENT in the Post-White Era

By Gray, Cynthia | Judicature, November/December 2007 | Go to article overview

Judicial INDEPENDENCE, Judicial SELECTION, and the FIRST AMENDMENT in the Post-White Era


Gray, Cynthia, Judicature


An edited transcript of the plenary session at the American Judicature Society Center for Judicial Ethics 20th National College on Judicial Conduct and Ethics, October 20, 2006

Panel members

Moderator: Cynthia Gray, Director AJS Center for Judicial Ethics

James J. Alfini, President and Dean South Texas College of Law

Honorable Dana Fabe, Chief Justice Alaska Supreme Court

Gerald Stern, Special Counsel to the New York Judicial Institute

Honorable David J. Waxse, U.S. Magistrate Judge, U.S. District Court Kansas City, Kansas

Cynthia Gray: I noticed as I was teaching and reading how often the issue of impartiality came up in every different context of the Code of Judicial Conduct. It is of course one of the core principles of the Code. It was brought to the forefront four years ago with the decision in Republican Party of Minnesota v. White. But it also is an issue that judges face in every case they try and every extra-judicial activity they get involved in.

It seemed to me that the term was being used in a lot of different ways by different people and maybe different ways by the same people. It was being used sometimes as an outcome determinative test. If you wanted judges to do something, you would say their impartially would not be compromised. If you didn't want them to do it, you would say it would be.

So I thought it would be interesting to gather together a number of people who have given a lot of thought to the issue to talk about defining and applying judicial impartiality. Academia is represented by Jim Alfini, who is currently dean of the South Texas College of Law. Dana Fabe is Chief Justice of the Alaska Supreme Court. Gerry Stern was for a long time the administrator and chief counsel for the New York Commission on Judicial Conduct. He continues to teach judges in New York. David Waxse was an attorney member of the Kansas Commission on Judicial Qualifications until he lost his eligibility when he became a federal magistrate.

The panel members are going to start with a discussion of why they consider judicial impartiality important or what they mean by it.

James J. Alfini: Judicial impartiality is a basic concept in our American scheme of justice. It's American Government 101. Although judicial impartiality is widely viewed as a core value in our system of justice, I don't think the concept can be adequately understood or defined unless we consider the related concepts of judicial independence and the rule of law.

Judicial independence and judicial impartiality are instrumental values that support the rule of law norm. And because judicial independence and judicial impartiality are inextricably intertwined, both play essential roles in judicial decision making in our democratic society. Judicial independence calls upon judges to be free of outside influences so that they may decide cases impartially.

Now, in the 21st Century, I think it would be folly to argue that the values of judicial independence and judicial impartiality can be maintained in their absolute sense. Judges usually come to the bench after legal careers and public involvement that shape their views of the law. But it's hard to believe that the vast majority of judges, elected or appointed, would abuse their independence or compromise their impartiality by regularly implementing personal or political agendas rather than adhering to the rule of law norm.

Even though judges may have certain moral values and political views, these values should be informed and tempered by a basic understanding and appreciation of the core democratic values, again, of the rule of law, judicial independence, and judicial impartiality. They should be keenly aware that bias, prejudice, and prejudgment are contradictory to the administration of justice in a democratic society.

I understand this is an optimistic view. But I'd like to think that it comes closer to reality than some of the extreme realists' views that claim if they know a judge's beliefs they can always predict the outcome of a case. …

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