April 11, 2004

Can Adulterers Judge Divorce Cases?

I agree that a judge who neglected or abused her child is not the ideal person to pass judgment on others who have done the same, because she might be over-inclined to go easy on other parents. The responsibility of the state is to keep the child in a safe, stable home. While a single incident of neglect does not suffice to ignore the stability consideration -- hence Ms. Hickson's continued custody of her adopted daughter, despite the past endangerment -- all parties who come before Ms. Hickson may be inclined to question whether she is fit to rule over them.

However, this is an incident in Ms. Hickson's private life. Her professional life is exemplary: an Emory Law graduate, trial attorney in Justice Department immigration litigation, an assistant U.S. attorney in Atlanta, a corporate lawyer, an appointment to the juvenile bench with the strong support of several U.S. attornies. "Sworn in as judge in 1999, Hickson quickly established a national reputation for her efforts in behalf of children, picking up numerous awards."

The Judicial Qualifications Commission and others who pushed Ms. Hickson to resign essentially are saying that a personal mistake would have so great an impact on her judging -- whether the impact was due to her own bias or to a perception thereof -- that it outweighs her public accomplishments.

How far could this go? Can an alcoholic judge people who have been driving while intoxicated? a former marijuana smoker rule properly in narcotics cases? How about the titular query: Can Adulterers Judge Divorce Cases?

Even judges of the highest rank are not perfect. Would Chief Justice Rehnquist, who did not read the deed to his Vermont vacation home and thus failed to realize that it had a restrictive covenant, have his judgment questioned in a strict liability case where the defendant had failed to scrutinize a document?

Perhaps child protection is an area of law so important, and so fraught with emotion and accusation, that the judges who work in it must be above suspicion. Certainly a person with a past accusation of neglect would not have been appointed to such a position, and maybe the same standard should apply to retaining her regardless of of her service.

My biggest concern is that as the role of the judiciary becomes more politicized, they themselves will be as subject to witch-hunting as regular politicians are. The theoretical ability of judges to remove their own experiences and prejudices from their minds in order to decide cases -- never entirely believed, but at least maintained as an illusion -- may crumble completely.