In this conversation, government officials have been some of the loudest voices — perhaps, not surprisingly, breaking down along party lines: Democrats loudly exclaiming the need for an extensive investigation to explore the Big Lie and its consequences; Republicans, by contrast, proclaiming with a few exceptions that there is no need for an investigation at all, and that to the extent that January 6 stood for anything it represented legitimate concerns over election fraud.
But there is one group of government officials who have been mostly quiet about the root causes of the events on January 6: federal judges.
Given the likely continuing fallout from frivolous litigation over the 2020 election, and the 600-plus defendants charged thus far in the January 6-related cases still working their way through the system, there will be many more statements by judges in the months to come that could be construed as offering opinions about the results of the 2020 election and the parties responsible for the attack on the Capitol.
But are such comments — dealing as they do with an issue that has become a major political flash point — appropriate for members of the judiciary, which is supposed to be the least political of our three branches of government?
After all, judges are supposed to stay out of the political fray. Federal judges are appointed, not elected. And despite the recent, and regrettable, trend of identifying judges by the politics of the president who appointed them, judges have lifetime tenure for the very reason that the founders did not want judges to be beholden to the politics or party of the president who appointed them.
When such comments are made as part of the judge’s duties, the answer is clearly yes. A judge’s job is to make decisions on issues before them by finding facts and applying the law to them. When judges make comments that logically bear on that work, they are entirely proper.
Thus, for example, Mehta’s comments about the relative culpability of the defendant he was in the process of sentencing were appropriate, as was Walton’s statement of concern that the defendant before him may re-offend because the impetus for his criminal conduct remained in play.
Hundreds more of the January 6 defendants will plead guilty and be sentenced in the months ahead, and undoubtedly in the course of handling those proceedings, federal judges will continue — as they should — to discuss the causes of the insurrection as they bear on the issues at hand.
Measured, fact-based descriptions of relevant events by judges have the potential to persuade where hyper-partisan rhetoric from elected officials may not. Indeed, the public should place greater weight on what judges are saying because of their unique role as neutral arbiters and their mastery of the relevant evidence. Let’s just hope people are listening.
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