Gavel Grab

Judges’ Commentary: When a ‘Partisan Tone’ Erodes Trust

There is a new threat to fair and impartial courts from within the judiciary itself, two leading state judges write, voicing concern about a “partisan tone” from the bench in two high-profile instances this year.

Kansas Judge Steve Leben (photo, on left) and Minnesota Judge Kevin Burke (photo, on right) are past and current presidents, respectively, of the American Judges Association. In a commentary published by MinnPost.com, they say it is not unusual for judges and their decisions to come under attack in an election year. But as the 2012 presidential campaign unfolds, they write, “something strange is happening:”

“In two high-profile court hearings, judges have struck what seems to be a partisan tone, unnecessarily inserting themselves into the campaign. Their actions from inside the judiciary threaten judicial independence just as much as attacks from the outside.”

Specifically, the authors question remarks by Supreme Court Justice Antonin Scalia during recent oral arguments over the federal Affordable Care Act. He asked whether there was “any chance that all 26 states opposing it have Republican governors, and all of the states supporting it have Democratic governors?” And the authors suggest Justice Scalia’s reference to “the Cornhusker kickback,” regarding purported dealmaking for a vote, “sounded more like a political attack ad than the sort of question a neutral judge would ask.”

In the second instance, Fifth U.S. Circuit Court of Appeals Judge Jerry Smith ordered the Justice Department to explain comments made at a news conference by President Obama on the federal health care case (see Gavel Grab). Judge Smith also referred to “Obamacare.” According to the authors, “This is not a typical court hearing at all, and certainly not one that promotes public confidence in the courts.”

Judges Leben and Burke register concern that when judges make comments that may be perceived as partisan, there are far-reaching concerns for an erosion of public trust in the courts:

“Our nation cannot afford to have the impression that judges made decisions based upon their personal or political views. What is at stake is the legitimacy of judicial decisionmaking.”

“We don’t suggest that these judges are not trying to be fair in actually deciding the cases — comments made from the bench don’t always indicate how a decision will come out. But the comments made from the bench can undermine public perceptions of fairness.”

Their commentary was reprinted in MinnPost.com from the March/April edition of Judicature, the journal of the American Judicature Society. Both AJS and the American Judges Association are JAS partner groups.

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