The Responsible Judge: Readings in Judicial Ethics

By John T. Noonan Jr.; Kenneth I. Winston | Go to book overview

C. Forms of Accountability

The parties to whom judges are accountable for proper performance of their duties may be divided into three overlapping categories: litigants, the judicial system itself, and the public. Each relationship is regulated by a different ideal.

In relation to litigants, the governing ideal is impartiality, which we explored in both its perfected and its corrupted forms in Part I. We observed there that judicial impartiality is constituted by two principal requirements: the absence of an interest in the outcome of a case and the absence of bias. Both factors may divert a judge from conclusions necessitated by a reasoned resolution of the dispute before the court. Duties to litigants encompass other types of conduct, however, as the cases discussed by the California Commission on Judicial Performance (in this section) illustrate. Judicial wrongs include such common faults as abuse of the contempt power, denigration of attorneys, improper remarks to juries, and failure to decide cases in a timely manner. Interestingly, the California Commission notes that their largest category of informal admonishment-- which takes the form of an "advisory letter"--relates to demeanor problems. These include "unnecessary harshness, sarcasm, impatience [and] name-calling." Demeanor problems have become especially acute in recent years as women have entered trial practice in large numbers. Gender bias obviously diminishes litigants' opportunities for fair treatment of their claims. Many states now require sessions focusing on gender bias as part of the continuing education of judges.

Aside from litigants, judges are accountable to the judicial enterprise itself. Here, the governing ideal is institutional integrity, and, like other forms of integrity, it has two aspects. In its outward-looking aspect, preserving the integrity of the judicial enterprise means safeguarding it from interference by the other branches of government. In particular, judges must maintain their independence from the political interests of the moment--a goal that, paradoxically, is sometimes accomplished by refusing to decide certain disputes. In its inward-looking aspect, institutional integrity means respecting the norms that sustain the enterprise. The gros

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