As Americans we pride ourselves on the rule of law and its sine qua non, an independent judiciary. In The Federalist No. 78, Alexander Hamilton described judicial independence as "an essential safeguard against the effects of occasional ill humors in the society." (1)
In the course of reaffirming the special role of judicial independence in our own society, we routinely decry the "telephone justice" practiced in some parts of the world. (2) Before the Berlin Wall came down, crimes such as "infringing on the activities of the state" served as "the fig leaves of a system that didn't disguise its real purpose: executing the wishes of the state's Communist Party leadership and their secret police." (3) Even as the world enters the twenty-first century, there are still nations where a judge can expect to receive a call from a party boss or security officer with orders on how to decide a case. (4)
While most would agree that such overt interference is the antithesis of judicial independence, these are the easy cases. The essence of telephone justice is decision-making on grounds external to the judge's own assessment of the law and the facts of a case. This evil may appear in many subtle guises. Judges must resist outside influence to maintain the uncompromised impartiality our offices require. There is more to looking outside the case and the law for direction then waiting for a call from the KGB or the Stasi. Judges face external pressures every day.
The temptation to pander to these external influences has never been greater. Federal judicial nomination and confirmation proceedings are openly political. (5) Judicial races are more expensive and hotly contested than ever before. (6) Media attention to court decisions has increased to the point where judges may attain celebrity status virtually overnight. (7)
The siren call of celebrity and career advancement (or, for that matter, simple preservation) is difficult to resist. The need for resistance is acute, however, against a backdrop littered with fakers--"Judge Judies" who are not constrained by the code of judicial conduct; people who tarnish the judiciary's standing with the public for purposes of financial gain. (8)
The first four sections of this article identify four permutations of telephone justice: pandering for confirmation, pandering to political pressure, pandering for votes, and pandering to the cameras. The final section tells the extraordinary tale that should perhaps go into the reporters as Judge Thomas Penfield Jackson v. Microsoft.
I. PANDERING FOR CONFIRMATION
When the Senate considered the nomination of Thurgood Marshall in 1967, the popular consensus was that candidates for the Supreme Court should not disclose their positions on substantive law. As Senator Edward M. Kennedy then said, "We are not charged with the responsibility of approving a man to be associate justice of the Supreme Court only if his views always coincide with our own." (9) Senator Kennedy has since adopted a different approach to the proper role of the Senate, (10) and the nature of Senate confirmation itself has changed.
Federal judicial selection entered the modern media era in 1981, when Justice Sandra Day O'Connor's confirmation hearings were covered live by radio and television. (11) When pressured by the media to state her position on certain issues, however, Justice O'Connor demurred:
I do not believe that as a nominee I can tell you how I might vote on a
particular issue which may come before the Court, or endorse or criticize
specific Suprem[e] Court decisions presenting issues which may well come
before the Court again. To do so would mean that I have prejudged the
matter or have morally committed myself to a certain position. Such a
statement by me as to how I might resolve a particular issue or what I
might do in a future Court action might make it necessary for me to
disqualify myself on the matter. …