Federal judges are 'guardedly apolitical'

One of the privileges of my former position with the federal judicial branch was attending periodic meetings of a small, distinguished group of federal judges, chaired by the chief justice of the United States, who governed our agency. On our way to the meetings, the judges and staff participants were escorted through the back corridors of the court, away from the public areas, to rooms that the public usually doesn’t see.

One morning as we navigated the marble hallways, I was — as usual — geeked out by the grandeur of the court and thinking “Wow, this is so cool!” when I caught myself, not wanting to seem star struck in front of the veteran judges in our group. Just then, one of the judges, a tough-as-nails former Marine with a reputation for commanding his courtroom, sidled up next to me and said: “You know, I can’t help myself, but every time I walk through this place I get just a little shiver! It’s just so neat to be here!”

To the judges and employees of the federal judiciary, terms like “justice” and “rule of law” aren’t just words, they are a mission — defining principles of our system of government that they have been entrusted to preserve under the U.S. Constitution. The Constitution gives federal judges the dual protections of lifetime appointment and no diminution of their salaries. In return, judges are expected to put politics aside and decide each case fairly and under the law.

I believe that is what happens. In the 30-plus years that I worked in the judicial branch, I could rarely tell whether the many judges I worked with were appointed by Republican or Democratic presidents unless I looked it up. Politics was simply not discussed. Getting decisions right was. Administering justice more effectively to more people was. Doing the job better was.

Judges know that in order to maintain their legitimacy as the nonpolitical branch of government, they must not act in ways that are perceived as political. The only leverage judges have to maintain their authority is the people’s trust. If that gets shaken, so does their authority. So, as an institution, the federal courts are guardedly apolitical.

I am afraid, though, that through no fault of the judiciary, the people are finding it harder and harder to believe that the courts are not political. The elected branches of government have been concentrating more closely on the judicial selection process as a way to gain political leverage than ever before, choosing nominees through litmus tests on political issues and lists compiled by advocacy organizations, and with the goal of building voting majorities As appointments get more politicized and breathlessly hyped by the news media, the courts are losing their special place and are being treated more like the political branches of government.

Still, I remain optimistic that the furor over the recent Supreme Court appointments will settle and any resulting changes in law will be less dramatic than many people expect or fear. I expect justices and other federal judges will continue to abide by the principles of stare decisis — making decisions based on legal precedent — and not rewrite long-standing legal principles. I expect the courts will not behave as an arm of the political branches. I expect this, because that’s what the rule of law expects and my experience has shown.

Something happens to a jurist when they are liberated from political considerations, like re-election, and from personal considerations, like earning a living. I believe they take a longer view of their court as an institution and the role of the courts in our constitutional republic. I believe they become motivated by the need to get every decision right, by the consequences of their decisions, by the importance of predictable and consistent outcomes and, yes, by the meaning of the rule of law.

I like to think that every time a federal judge — including a Supreme Court justice — enters the court building with its inscription of “Equal Justice Under Law” over the threshold, they still get that chill of being part of something transcendent, more important than any political party or point of view.

I know I do — and I hope I always will.

Syl Sobel is an author and a former executive of the Federal Judicial Center. His website is www.sylsobel.com. The points of view expressed in this op ed are his and not those of the Federal Judicial Center or its board.

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