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Judges should stay out of the PC debate

Defending his remarks questioning the impartiality of Mexican and Muslim judges, Donald Trump said that we "have to stop being so politically correct in this country." It is a familiar refrain from a candidate who often claims that political correctness is "killing us."

Large numbers of Democrats and Republicans stood up in defense of the judiciary, but the judiciary is not a passive bystander in the PC debate. Some jurists have, unfortunately, sounded similar complaints about PC culture.

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In a commencement speech last month, Justice Clarence Thomas told the new graduates of Hillsdale College: "Do not hide your faith and your beliefs under a bushel basket, especially in this world that seems to have gone mad with political correctness."

Two weeks later in a dissenting opinion, U.S. 4th Circuit Court of Appeals Judge Paul Niemeyer, whose chambers are in Baltimore, urged the Supreme Court to take up a dispute regarding which bathroom a North Carolina transgender student must use. The judge bemoaned the Obama administration's "politically correct acceptance of gender identification as the meaning of 'sex.'"

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I have searched state and federal appellate decisions for variations on the phrase "politically correct." It turns out there is a small sub-genre of decisions where an appellate judge writes a separate opinion accusing his colleagues of bowing to political correctness. The authors of such opinions are almost invariably men, most of them white. Such opinions have tended to come when a Democratic president has been in office for a few years.

From 1996 to 1998, midway through the Clinton administration, judges on at least five different federal and state appellate courts issued separate opinions decrying political correctness. The opinions covered a wide range of topics: sodomy, sex discrimination, tribal sovereignty, the death penalty and campus speech. But cries of political correctness mostly vanished from appellate opinions during the George W. Bush administration.

Anti-PC rhetoric, from judges on at least four different appellate courts, has re-emerged in the latter half of the Obama administration. In 2013, 16 judges on a Louisiana-based federal appellate court heard a sex-discrimination claim against a construction company where men were accused of harassing male co-workers for not being stereotypically macho. Ten judges ruled against the employer; one of six dissenters (three of them women) claimed that the majority took "a deep bow at the altar of the twin idols of political correctness and social engineering," and that the majority blessed a "hypersensitivity" that "hastens cultural decay."

In the last two years, state supreme court justices in Iowa and New Hampshire have accused their colleagues of political correctness in cases involving abortion and disability discrimination. The North Carolina bathroom case is the latest in a resurgence of judicial indictments of PC culture.

No one wins when judges adopt the rhetoric of the 24-hour news cycle. In political debates, accusing an opponent of political correctness is a way to draw applause without saying anything of substance. When such anti-PC language makes its way into judicial opinions, it does not make the judge's legal conclusion any more right or wrong. It does, however, reinforce the insidious narrative that judges are mere politicians in robes. To readers who agree with the complaining judge, his anti-PC rhetoric implies that other judges are bowing to political winds. Readers who disagree with the complaining judge, however, are more likely to see him as the political partisan. Crying "political correctness" is a method of polarization, without persuasion.

Judges do not endorse Donald Trump's candidacy when they denounce political correctness. But they do lend legitimacy to a narrative at the center of his campaign. Within the legal community, the bipartisan consensus is that Mr. Trump's nomination presents an existential threat to America's independent judiciary. In the name of an independent judiciary, judges should distance themselves from culture-war rhetoric.

Steven M. Klepper is an appellate attorney; he serves on the board of the Women's Law Center of Maryland and as editor-in-chief of the Maryland Appellate Blog; his email is sklepper@kg-law.com; Twitter: @MDAppeal.

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