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November 12, 2021 Introduction

Judging in a Politicized America

By Marla N. Greenstein

Many of us have lived through tumultuous times in our own past. I personally was in elementary school during the assassinations of a president, his brother a few years later when campaigning for that same office, and Martin Luther King Jr. that same formative year. Our own National Guard’s killing of college students at Kent State, who were protesting a war that my friends’ brothers sought to avoid serving in, soon followed. As a high school student, I witnessed the impeachment of a president and his subsequent resignation for obstructing justice concerning illegal activities by his supporters in a reelection campaign. And yet, this personal experiential history has left me unprepared for the discord we all now face.

Isolation of a pandemic has accentuated the echo chamber of beliefs and their factual bases. It is difficult to find many who do not ascribe a political motivation to any action or statement, including those by judges in their official capacity. And yet, the judiciary is charged with being that impartial arbiter, bolstered by procedural rules and an appellate process governed by historic precedent. Many still view the courts, acting through its judges, as the constant stabilizer in a rough sea of public discord. But judges are human, and the courts are the forum for resolving disputes that otherwise cannot be reconciled. This issue of The Judges’ Journal looks at the many faceted ways judges are engaged in this storm of discord.

Two articles focus on the important role the courts played in the various challenges to the recent presidential election. For those of us who have participated in international rule of law initiatives, these cases are a template for what worked well under our government framework. The issues were clarified by the courts, the facts documented, and the law (and its limits) applied. While reassuring in its outcomes and relatively smooth process, the authors of the articles also caution the fragility of this framework and acceptance of court rulings.

Other articles emphasize the dangers that judicial elections pose for maintaining a credible judiciary in these political times. Judges as candidates and lawyers seeking judicial office can easily walk over that invisible line that separates ideology from predetermining case outcomes once elected to a judgeship. Ohio’s unique rapid campaign ethics response may provide a blueprint for other states’ elective judiciaries.

Social media’s ubiquitous presence and influence over policy information and perspectives provide a challenge to all, but especially to judges. John Browning’s cautionary piece, coupled with Judge Benes Aldana’s, provides some guidance for both caution and vigilance. While the Browning piece focuses largely on judges’ presence via social media, Judge Aldana’s provides the overview of the impacts that a politicized citizenry has on the difficult job of judging.

We open this issue with our Waymaker interview of Chief Judge Anna Blackburne-Rigsby, which serves to give us a broader context of inspiration and hope. The road forward is treacherous, but Judge Sparks and Nan Mooney’s interview reminds us all of the significant work we are called to do and the higher purpose we serve in doing it with integrity and courage.

When conceptualizing this issue and contacting authors to contribute, I was struck by the sense of urgency that we all feel. Hopefully, this issue will provide some groundwork for reflecting on the storm of ideas we are confronting daily. It is cathartic to begin this dialogue here, with those who take a deep breath at the beginning of each day and do justice in often very small ways. Judges as impartial arbiters are rightfully often reluctant to enter the fray. And yet, the politicization of America will be brought into every courtroom through the parties in disputes with their assumptions and beliefs. Every dispute is an opportunity for judges to exemplify what it means to serve impartially in a very divided time and place.

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By Marla N. Greenstein

Marla N. Greenstein is the executive director of the Alaska Commission on Judicial Conduct. She is also a former chair of the ABA Judicial Division’s Lawyers Conference. She can be reached at [email protected].