Response to Cassandra Burke Robertson, Judicial Impartiality in a Partisan Era
In Judicial Impartiality in a Partisan Era (“Professor Robertson’s Article”), Cassandra Burke Robertson focuses on the danger the judiciary faces as a result of “growing partisan polarization.” She should be applauded for bringing this problem to the forefront. Unquestionably, politically motivated attacks against the judiciary have increased since 2010. Professor Robertson’s Article illuminates the dichotomy between the expectation that the judiciary be fair and impartial in protecting litigants’ constitutional rights—as guaranteed by the this country’s fundamental documents, the U.S. and state constitutions—and the threat to those bedrock principles when politically motivated special interests look to the judiciary to support their own political agendas. Professor Robertson’s Article proposes that the solution to this dangerous dichotomy lies in changes to judicial decision-making processes. But, this proposal perpetuates the belief that judges are incapable of deciding a case without regard to perceived political allegiances that may have helped them achieve their position. With respect, it appears Professor Robertson’s Article assumes that partiality based on political affiliation is endemic to our federal and state judiciary. Rather, as former Florida Supreme Court Justice Barbara J. Pariente and others have explained, part of the solution lies in more informed public education as well as reviewing our judicial selection processes.