Judges should be impartial. Everyone agrees on that. But behind the single word “impartiality” lurk several distinct issues that need to be disentangled.
First consider the facts of a specific case: who did what to whom. Judges must be open-minded about such facts. They must make factual findings based only on the evidence presented by the parties, and they should not opine about the facts before deciding the case. Abandoning this sort of neutrality — for instance, declaring that the defendant is guilty before a trial starts — is obviously improper.
It's problematic to have a bias about the facts of the case. But a neutral view of the law is not impartiality; it's just incompetence.
Judicial impartiality with respect to the parties to a case is also generally desirable. A judge who favors one party, or gives greater weight to that party’s claims, is not behaving neutrally. This kind of neutrality may be harder to maintain where repeat players, such as the government, are concerned, but it may not be necessary. At the Supreme Court, for instance, the statements of the solicitor general are typically considered more than usually trustworthy. Abuses of that trust can also leave marks. Deception by the solicitor general’s office regarding the internment of Japanese Americans during World War II almost certainly made the justices more skeptical of the government’s claims of military necessity in post-9/11 detention cases. This sort of institutional memory is generally accepted and not harmful.
What about the law? Here the model of impartiality used for case-specific facts is inappropriate. Judges learn about the law from sources other than the parties, and they do so both before litigation begins and outside the courtroom. A judge who had no opinions about the law before a case began would not be impartial; she would be incompetent. Judges should have views about the law, even about unsettled legal questions. Expressing those views should not be seen as compromising neutrality. In particular, Supreme Court nominees should not be able to hide behind impartiality in declining to answer questions in confirmation hearings.
Last, how active may a judge be in case management, for instance by suggesting motions or arguments to parties? There is an instinctive aversion to such behavior. It would surely be wrong for an umpire to help out one team. And purely tactical advice from a judge (“Have the defendant wear glasses to look less threatening”) is equally improper. But litigation is not merely a contest of skill, and judges are not merely umpires. Sporting contests do not have right answers, but most lawsuits do, and judges frequently take active steps to reach those answers. They may, for example, decide a case based on a theory or argument that neither party raised. If this behavior is not taken to exhibit bias — and it generally is not — it is hard to see why suggesting the theory is improper, and indeed Supreme Court justices frequently do just that during oral argument. Advice that facilitates a better legal decision (suggesting, perhaps, how a party could present particular evidence if they had it) is not improper.
Explanation: H I ;0
