By John DiMotto
Judges are very public figures. They are called upon to resolve disputes - both big and small. If the matter is very high profile, the judge is oftentimes in the "eye of the storm." When a judge renders a controversial ruling, it usually engenders much public discussion. Therefore, it is critical for a judge to very carefully and thoroughly set forth on the record the factual and legal basis for a decision. Why, you ask, is this critical? Because the judge cannot discuss it off the record.
Every state has a Judicial Code of Ethics. In Wisconsin, our code is set forth in SCR (Supreme Court Rule) Chapter 60. This code sets forth in detail what a judge can and cannot do both on and off the bench. One of the tenets of our code is that judges cannot discuss decisions outside of the court case. So, when a judge renders a decision that is controversial and public debate flairs up against the judge, he/she cannot speak out to further explain or defend the decision.
This means that if the judge is being roundly criticized in editorials, talk radio, cable news, local television station "investigative" reports, etc., he/she can only refer critics to the court record. The judge cannot call a press conference to answer specific questions or address specific criticisms. The judge cannot sit down for an interview with his/her critics. and, this can be very frustrating.
Human nature is such that no one likes to be attacked, and, when attacked, people ordinarily want to defend themselves. A judge's only defense for a decision is to provide a transcript of the decision to the public. However, in this 21st century electronic era, the media wants more. They want something more personal to present to their viewers. Ordinarily, they do not want to read a judges comments from a transcript. It takes too long and is too dry. As a result what occurs is criticism that goes unanswered from the judge because the answer is not in a form that meets the needs of the media outlet.
The next time you are watching or listening to a report of a judicial decision and you hear the reporter say: "when contacted for a response, the judge refused to comment" please keep in mind that the judge cannot speak outside the case. Judges are limited to doing their talking in the courtroom to ensure the independence of the judiciary.
You should read "Courts and Judges On Trial: Analysing and Managing Discourses of Disapproval" by P D Schulz to see how much Justice and the Rule of Law is under threat. Independence may not be enough to save the judiciary in the end.
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