Rule of Law or Rule by Whimsy? or “What Makes a good Judge?”

The recently-announced impending retirement of U.S. Supreme Court Justice David Souter – thus giving President Obama his first opportunity to nominate a Supreme Court judge – has focused attention and discussion on the desired characteristics and qualifications to assume that important position.

Recent decisions and actions by our own Colorado state Supreme Court – and the potential for “retiring” four of the current Colorado Supreme Court justices in judicial retention elections in 2010 – raise(s) similar questions about the desired characteristics and qualifications of judges for that court as well.

What makes a good judge?

An independent, fair and impartial judiciary is indispensable to our system of justice … the judiciary plays a central role in preserving the principles of justice and the rule of law.

Two Opposing Judicial Philosophies: Rule of Law vs. “Preferred Outcome”

In our system of justice, judges are analogous to referees at a sporting event: at least, that’s the view of the “Rule of Law” school of jurisprudence.  Like referees, judges are supposed to be impartial – taking no sides, applying the rules equally to both teams and all players.  Judges can’t “play favorites”, and are NOT supposed to be players themselves.

An alternative view holds that judges should NOT hold themselves above or outside the debate, but instead should be “part of the process” – influencing the results to reach a desired outcome.  This view is not necessarily restricted to a particular political party or ideology; there are both “conservative” and “progressive” judges who rule based on what  they personally FEEL to be “right” or “fair” – rather than the stated intent and letter of the law.

However, a judge’s feelings – or personal preferences – are an unreliable (at best) and dangerous basis for a legal system.  Imagine playing a sport in which the rules are constantly subject to change, at the whim of the referee.  Even worse, the referee is friends with some of the players on the other team.  Sound like fun?  Not so much…

Now suppose that you’re forced to play that sport – and your earnings, your property, your freedom, even your life, might depend on the score.  Welcome to the world of “Rule by Whimsy” or judicial activism:

 …when judges substitute their own political opinions for the applicable law, or when judges act like a legislature (legislating from the bench) rather than like a traditional court. In so doing, the court takes for itself the powers of the legislative branch, rather than limiting itself to the powers traditionally given to the judiciary.

 Sound familiar?


A recent online article (Obama’s empathetic judicial poison) clearly illustrates the dangers and pitfalls of the “preferred outcome” approach to selecting judges:

Barack Obama’s statement that “empathy” would be a key qualification he’d look for in a nominee to replace David Souter on the Supreme Court is not simply soft liberal thinking, it’s a direct attack on the rule of law, an abrogation of Obama’s oath of office – and entirely consistent with Obama’s prior statements.

Obama’s statement about the process of selecting his nominee included this:

I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people’s lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.

What Obama is saying here is that the rule of law should be secondary in judicial reasoning to a judge’s own personal feelings. It is nothing short of a recipe for a breakdown of our legal system, and the death of an expectation by participants in court proceedings that they will be treated fairly, particularly if they are not highly sympathetic.

ALL citizens MUST be equally able to expect fair treatment from the courts – and reasonably presume that the law means what it says, so that they can make decisions accordingly.


The American Bar Association (ABA) – an organization that may be politically suspect, but can at least be presumed to know something about judges and legal standards – has developed a “Model Code of Judicial Conduct” as a standard for “judging the judges.”  Among the key “rules”:

RULE 1.1  Compliance with the Law

A judge shall comply with the law,* including the Code of Judicial Conduct.

RULE 2.2 Impartiality and Fairness

A judge shall uphold and apply the law,* and shall perform all duties of judicial office fairly and impartially.*


[1] To ensure impartiality and fairness to all parties, a judge must be objective and open-minded.

[2] Although each judge comes to the bench with a unique background and personal philosophy, a judge must interpret and apply the law without regard to whether the judge approves or disapproves of the law in question.


[1] Even when subject to public election, a judge plays a role different from that of a legislator or executive branch official. Rather than making decisions based upon the expressed views or preferences of the electorate, a judge makes decisions based upon the law and the facts of every case.

It is clear that the current majority on the Colorado Supreme Court fails this standard.

In 2010, render your verdict – vote “NO” to retain Justices Mullarkey, Bender, Martinez, and Rice.

4 Responses to Rule of Law or Rule by Whimsy? or “What Makes a good Judge?”

  • Wesley says:

    Totally agree. The courtroom is no place for prejudice. If we’re not going to operate by the rule of law in the courtroom, then society really has no need for the courts.

  • EZErnie says:

    It would be nice if the “stated intent and letter of the law” was perfectly clear. Unfortunately, just like the rules of the game, different referees interpret the rules somewhat differently. And very intelligent judges who are very well versed in the law may legitimately differ on how the intent and/or letter of a particular law should be interpreted and applied in a particular case. And who is to judge whether those different interpretations are the result of personal feelings about the issue at hand or different opinions as to what the stated intent and letter of the law is.

  • Director says:

    For “EZErnie” –

    What part of “districts must have voter approval in advance for… any new tax, tax rate increase, mill levy above that for the prior year, valuation for assessment ratio increase for a property class, or extension of an expiring tax, or a tax policy change directly causing a net tax revenue gain to any district” is NOT clear?

    You must be a lawyer…

    I don’t disagree that on some fine points of law, reasonable people may disagree on the interpretation and application in some instances. However, some “intelligent” judges have clearly violated the “black-letter law” in several recent high-profile cases – and their repeated hostility to certain sections of the Constitution (i.e. TABOR) makes it clear that they are motivated by desire for a particular outcome, not an “honest” difference in view.

    You’re trying to pull the “leave it to the professionals” card, playing up the angle of wise, all-knowing judges lording their superior intellect and knowledge over the merely mortal citizenry. However, the law IS clear – and MEANS WHAT IT SAYS.

    Unlike you, apparently, I trust the informed and educated citizenry to be able to read the law – once brought to their attention – and draw their own conclusions.

    As to “who is to judge:” the citizens of Colorado, in whom ALL political power is ultimately vested, have not only the RIGHT, but the DUTY to do so…

    I trust that an informed electorate will indeed render their verdict on these “unjust justices” and vote “NO on retention in 2010.

  • Priz says:

    We only selectively enforce the laws of this nation. When a state passes a law requiring police officers to enforce federal laws, it is called racial hatred. President Obama attacked Arizona for enforcing the law. So, why would anyone expect judges to respect the law?

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