Today’s guest blogger is Charles Benjamin Schudson, author of the book Independence Corrupted: How America’s Judges Make Their Decisions.
They all agreed. Bret Kavanaugh and every senator on the Judiciary Committee agreed that independence is essential to judicial fairness, and that, to maintain independence, judges and judicial nominees must not forecast their positions on issues that could come before them.
So like all supreme court nominees, Judge Kavanaugh “answered” many questions by explaining that, to preserve at least the appearance of independence, he must promise only an open mind. The senators agreed.
How surprising that neither Kavanaugh nor any senator mentioned that independence is no longer the fulcrum on which decision-making rests. How disturbing that pundits and policy-makers don’t seem to know that, since 2002, America’s judges have been free to forecast their decisions on every issue – abortion, guns, executive privilege – even if they do so pandering for political support.
What happened in 2002? The US Supreme Court decided Republican Party of Minnesota v. White, invalidating the “announce clause” of Minnesota’s Code of Judicial Conduct. Like the judicial ethics codes of almost all states, it prohibited judges and judicial candidates from “announcing” their positions during their campaigns. Thus, the Court upended America’s law and tradition of judicial independence.
Before 2002, when I ran in Wisconsin for both the trial and appellate bench, I campaigned – door-to-door, in bowling alleys and churches, and even at labor, corporate, and partisan gatherings. But I could not offer opinions about abortion, guns, or other subjects I might be judging. Even when vying for endorsements and financial support, silence was golden. And if I violated that standard, I could be suspended or removed from office.
Starting in the 1960s, all fifty states enacted such codes. But while almost all judges complied, some candidates rebelled. Propelled by personal beliefs and political ambitions, they campaigned on controversial issues; they soon found themselves in court fighting the disciplinary prosecutions of their conduct.
One of them, a candidate for the Minnesota Supreme Court, sought an injunction to stop the ethics board from disciplining him. Minnesota’s Republican Party joined his cause. They argued that the code violated his First Amendment rights and denied voters what they needed for informed voting. The US Supreme Court, 5-4, agreed.
The result: judges and judicial candidates now are free to forecast their positions on any issue. Thus, since 2002, judicial elections have morphed from low-financed yawners to high-financed screamers about abortion, capital punishment, gun control, same-sex marriage, and “tort reform.”
America’s judges now are more vulnerable to litmus testing and political pressuring than ever before. Voters and interest groups may demand, “What would you decide?” And now, like never before, judges and judicial candidates calculate their answers according to endorsements and dollars.
Without taking sides on the First Amendment merits of the Supreme Court’s decision, all can acknowledge its enormous consequences. After all, approximately 99% of America’s court cases – from child custody to medical malpractice, from multi-million dollar disputes to murder – are decided by state judges. And thirty-nine states, accounting for almost 90% of America’s judiciary, elect their judges.
Thus, except for Marbury v. Madison, the 2002 case may mark the Supreme Court’s most significant decision on judicial authority and conduct in American history. The fairness (or at least the appearance of fairness) of all state judges may never recover.
Two hundred years ago, Chief Justice Marshall declared that “the greatest scourge an angry Heaven ever inflicted upon an ungrateful and sinning people, was … a dependent judiciary.” And in a 2015 decision, Chief Justice Roberts implored, “Judges are not politicians.” Perhaps. But now we must ask whether America’s judicial independence can continue and, without it, whether our democratic republic will survive.
Charles Benjamin Schudson, a Wisconsin Reserve Judge Emeritus, served as a state and federal prosecutor, a trial and appellate judge, and an Adjunct Professor of Law at Marquette University and the University of Wisconsin. From 2009 to 2014, he was a Fulbright Fellow teaching at law schools abroad.
“Gretchen, if you are a bus driver going from New York to Miami, you can’t head to Chicago without telling your riders why.” Then I’d know I had an organizational problem.
It was Bill who urged me to go looking for the grandfather I never knew—Franz Rickaby, who had died when he was only thirty-five. My grandmother had called him Frenzy. As a young English professor at the University of North Dakota, Franz wandered the Upper Midwest from 1919-1923. With a fiddle on his back, he sought the songs of the shanty boys from the camps of the quickly disappearing white pine forests.
I took Bill’s advice and hit the road. I traced Rickaby’s footsteps—as many as I could—and, in doing so, I met my grandfather. And I came to know a slice of American history from the lumber industry to the forest fires, from cutover land to the last remaining majestic white pines. I dove into the files of archives and historical societies from Galesburg, Illinois, to Ladysmith, Wisconsin, to Virginia, Minnesota, and points in between. When I called eminent folklorist Jim Leary, who knew Rickaby’s work well, a new edition of my grandfather’s work took shape. Pinery Boys was born.
Franz Rickaby
Gretchen Dykstra
published on a broadside in the late eighteenth century, an abridged edition of Olaudah Equiano’s autobiography published for children and adolescent readers in nineteenth-century New York, an uplift narrative published after the Civil War that contains important photographs, and autobiographical graphic narratives published in the late twentieth century. The slave narratives published in the antebellum period still remain very important, of course, but my book makes the case that scholars need to spend more time analyzing other overlooked texts and lives. More work needs to be done to recover neglected aspects of African American lives and to dig into texts that have not received adequate critical attention.
We also call for studying a wider range of genres. Scholars today can look at the presentation of self in blogs, YouTube posts, graphic narratives, films, and photography, to name just a few genres. The intersection of genealogy and genetics, too, has produced all kinds of new information on African American lives that we need to consider. The printed page is still important, but these other channels make it clear that African American life narrators are telling their stories and exploring the self in ways beyond the writing of a memoir. All these varied explorations have expanded the canon of African American life narrative in dramatic ways. There is no doubt that the field must and will become more interdisciplinary.
written here about Abigail Mott’s 1829 abridged edition of Equiano’s autobiography. Usually, Equiano is understood as one of the main individuals of African descent involved in the political movement against the slave trade in 1780s Great Britain. The point of my chapter is that there is a whole different story on Equiano if you look closely at the several different editions of his autobiography that were published in the United States, both during his lifetime and following his death. Mott’s 1829 edition, published thirty-two years after Equiano’s death, was aimed at students in the New York African Free School. It is the first edition of Equiano’s autobiography I know of that was edited specifically for young African American readers in the United States.
well as near Yaqui exile communities in Arizona that had become permanent over the years. After the talk, an older gentleman approached me to introduce himself as a Yaqui. He did not thank me; instead, he told me that his people would not have recounted their history chronologically as I did, because that is not how time plays out for them. Hearing that as a sharp rebuke, my heart began to sink, until he quickly added that perhaps I was a Yaqui in my previous life. I took that gratefully as a back-handed compliment.
Writing indigenous history as an outsider is a challenging and risky business. The burden of responsibility to “get it right” for insiders can be balanced only by appreciation for the outsider historian’s craft and authority. When the older Yaqui and the younger Yaquis spoke truth to my power, I was simultaneously humbled and proud during both encounters.