Intersection of Law & Politics: Playing Politics with Judges
By Hilary Meyer, Judicial Independence Program Associate from Of Counsel vol 3, no 2
Yet again, extremists are plowing through the nation’s courts attacking one of the pillars of our judicial system — the impartiality of judges.
Judicial canons (the rules that judges must follow) require that judges disqualify themselves from presiding over cases where they have or appear to have a bias on an issue. These canons safeguard both the impartiality of judges and our faith in a fair legal system.
But these canons are now under attack. Several lawsuits spearheaded by the former attorney for the Christian Coalition have been filed across the country to attempt to abolish recusal provisions. The core argument is that these provisions violate the First Amendment’s guarantees of free speech, causing a chilling effect on judges who wish to speak publicly about their personal views on a legal or political issue that may come before them. Not surprisingly, one of the key objectives in this targeted litigation movement is to allow judges who speak out against gay and lesbian rights to preside over cases involving those very rights.
Lambda Legal filed an [amicus brief] in Florida Family Policy Council v. Freeman explaining how harmful a ruling that rejects these canons would be to minority communities. Because minorities often turn to the courts to vindicate constitutional rights, there must be open-minded judges who will not be predisposed to ruling against anyone because of personal biases. Indeed, even when holding that a judge could not be disciplined for making antigay comments in a local newspaper, the Mississippi Supreme Court stated that recusal is the necessary recourse: “Allowing -- that is to say, forcing -- judges to conceal their prejudice against gays and lesbians would surely lead to trials with unsuspecting gays or lesbians appearing before a partial judge. Unaware of the prejudice and not knowing that they should seek recusal, this surely would not work to provide a fair and impartial court to those litigants.”
While extremists try to hack away at judicial ethics in order to further their socially conservative agenda, Lambda Legal will continue to argue that the very integrity of the U.S. system of justice hinges upon judges who will decide cases based only on evidence and legal principles, not discrimination and bias.
