It was wholly a pleasure to receive your thoughtful inquiry in response to my opinion - it might even be called my obsession - about the danger of judges taking part in political debate. Judges can be sly about it: Some take political stands while claiming to be only discussing the general philosophy of the law.
But where, you ask, does philosophizing end and politicking begin? Granted, the border between politics and law has always been hazy. So where would I suggest we draw the line, you want to know. What's a judge to do when asked to give a lecture or address a civic group? How far can he go when the subject of politics arises? Good questions.
My answer: Judges would be well advised to indulge in as little political comment as decently possible.
Here's what I'd advise their honors: Stock up on inoffensive platitudes, and distribute them generously. Learn to be only ceremonial in public discourse rather than colorful or provocative or "interesting," no matter how clever or eloquent a judge may think he is. Cultivate dullness. Aim for the banal. Any speech by a judge should be like the perfect gentleman's tie: forgettable. Leave the flashy comments to newspaper columnists; in exchange we'll promise not to lay down the law.
It was said of Dwight Eisenhower that as president he would go through his speechwriters' drafts and strike every memorable phrase. It drove them crazy, but Ike realized he was more than a politician; he was a head of state. He was president of all the people, not just his own partisans.
It takes a wise man to keep his wisdom hidden. The country was full of intellectuals during the Eisenhower years who dismissed the 33rd president of the United States as that golfer in the White House. Years later they'd scratch their heads trying to figure out why he'd been such a successful president.
Like presidents, judges need to remember that they represent not only themselves but the impartial rule of law. They shouldn't be speaking out of school or, in their case, out of the courtroom.
But who would want a blanket prohibition against judges' speaking or writing off the bench? Think of all that would be lost, including the splendid speeches, essays, and lectures of the well-named Learned Hand. ("The spirit of liberty is the spirit which is not too sure it is right.")
Judgment is all in these matters, both on and off the bench. Which figures, since what we're discussing is the proper behavior of judges.
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