The Moral Judge

Abstract

This Article is part of Drake Law Review's Annual Symposium, which is cosponsored by the American Judicature Society and entitled Morals v. Merits: The Intersection of Personal Convictions and Federal Judicial Selection. I thank Andrew M. Wilcox for his improvements of this Article.

This Article contains the preliminary criteria of the moral adjudicator. It outlines their importance first by critiquing the pervasive morals versus merits dichotomy in judicial selection and second by explicating the virtue of open-mindedness in ethics generally and judges specifically. This sketch works by adapting and applying approximately four critical perspectives: (1) a broad conception of justice; (2) moral pluralism; (3) ethical contextualism; and (4) the rules and norms of judicial ethics. When justice, legal-context morality, and the nature of ethical adjudication are properly understood and defined, the confluence of these four perspectives counsels that morals equal merits and vice versa. This Article makes the related, but surely distinct, claim of a prime directive for the judiciary - to guarantee an escape valve function to the (otherwise inevitable) unfair application of law. It claims further that this directive implicates the prime virtue of the judiciary, which is stubborn open-mindedness. The judicial selector, then, should be concerned primarily with whether the judge and her judicial philosophy meet these criteria. Through the use of a hypothetical nominee opining on the ubiquitous abortion issue, the Article also illustrates this inquiry.

Keywords: Federal Judicial Selection; Judicial Appointment; Adjudicatory Justice; Judicial Ethics; Code of Judicial Conduct; Canons of Judicial Ethics