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Document Type

Comment

Publication Date

Spring 2019

Publication Citation

94 Indiana Law Journal 727 (2019)

Abstract

This Comment advocates for the acknowledgment of religious values in judicial decision-making in three parts. Part I explores the role of religion in American politics, and more specifically, the role of religion in federal judicial confirmation hearings and state-level judicial elections. Membership to an institutionalized religion often performs an essential gatekeeping function when it comes to assessing the background or personal values of a candidate for political or judicial office. The initially positive role of religion in judicial selection processes suggests that the practice of refusing to acknowledge the role that religion likely already plays in judicial decision-making is wholly cosmetic. This skin-deep predilection only leads to the concealment of religious values in judicial decision-making, and such concealment benefits neither judge nor litigant.

Part II considers arguments for and against acknowledging the role of religion in judicial decision-making. Specifically, Part II looks to arguments proffered by Judge Lipez, Judge Wendell L. Griffen, Scott C. Idleman, and the late Judge Marion Callister in Idaho v. Freeman in favor of acknowledgment, and former New Mexico Supreme Court Justice Gene E. Franchini, Bruce A. Green, and Derek H. Davis in favor of maintaining the faux secular status quo. Part III recommends changes to Rule 2.4 of the Model Code, as well as Canons 3(A)(1) and 3(C)(1) of the Code of Conduct. I propose adding language to the Comment to Rule 2.4, which governs external influences on judicial conduct,26 to distinguish between appropriate consultation with extralegal sources and inappropriate supplanting of the law with extralegal sources. I propose entirely new commentary for Canon 3(A)(1), which governs a federal judge’s performance of her adjudicative responsibilities,27 and Canon 3(C)(1), which governs disqualification,28 respectively, to reiterate two ideas highlighted in this Comment. First, faithfulness to the law does not preclude consultation with extralegal sources; and second, determinations of judicial impartiality are based on the “disinterested observer” standard29—not the perceptions of the parties appearing before a judge.

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