The judiciary is in many ways the most secretive of the three
branches of the federal government. It is not subject to the Freedom of Information Act or any other so-called "sunshine" statute. Judicial disciplinary proceedings are conducted in private. Although the judicial system professes to display its decisional processes "on the public record," its most important decisions are made behind closed doors, whether by judges or juries. Law clerks and supporting staff are sworn to secrecy. There are remarkably few "leaks," and no whistleblowers. A veteran journalist once told me that "we know more about how the CIA operates than we do about you."
That secrecy has consequences. In his remarks to the D.C. Chapter of the Fellows of the American Bar Foundation last spring, my colleague Judge Paul Friedman expressed alarm at the increasing intensity of public attacks upon judges and their decisions, and the loss of public confidence in the judiciary as an impartial and nonpolitical branch of government. Because it would be "unseemly" for judges to respond, however, as well as contrary to the Code of Judicial Conduct, Judge Friedman called upon the bar to assume the responsibility to defend them.
I cannot agree. Judges are responsible for their decisions, not the bar. And so judges should expect to bear a large part of the responsibility for dispelling the caustic effects of any criticism they provoke. One way of doing so would be to become more communicative.
It is the DC Circuit judges who refuse to talk about their Microsoft decision and give an impression that they are corrupt. Their decisions were inexplicably favorable to Microsoft. Either they have personal antagonism towards antitrust law or they wanted to do favors for Microsoft. They really resented Jackson explaining the case to the press because it exposed how the DC Circuit ruined the case.
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