Since I've been taking issue with the dominant view on journalistic ethics lately, why don't I try for judicial ethics? There seems to be this common view that it's wrong for a judge to talk about something they might later have to write an opinion on. Justice Scalia, for instance, recused himself from Newdow's case against the federal government about the pledge of allegiance because he'd talked about his views on the subject in public. Scalia and Breyer had a debate this afternoon, and Breyer seemed very hesitant to say anything positive about Scalia's opinions even though it was clear from the context that he wanted to say that Scalia's opinions are almost all excellent. The only reason I can think of why he would view this as improper is that he hasn't himself written on those issues, and judges aren't supposed to reveal opinions on any issues that they might face in court unless they've written an opinion on it before. This is a restriction that I've never understood.
Obviously part of a judge's job description is to be able to figure out how the law applies to cases that are new, ones the judge hasn't thought about. Does that mean a judge can't have opinions about any cases that aren't in that category? I wouldn't think so. Then why would it be wrong to express a view on potential cases one has thought about? The only reason I can think of is that it's somehow showing that you're biased before the fact, and you will be invulnerable to argument on cases on that subject.
There are two things wrong with this. One is that everyone is biased. As a character in a Stargate SG-1 episode said, "Everyone who has a mind has an opinion." Within the restricted domain that statement was intended to cover, it's true. Your opinion might be that the evidence goes both ways, but that's an opinion. If you have no information, that's different. A judge will eventually need a more definite opinion, but any evaluation whatsoever is an opinion. If a judge isn't allowed to evaluate any legal matter before writing an official legal opinion, then there's an awful lot that they teach in law school that they shouldn't be teaching. Simply absorption of what the law states (and everything necessary for understanding it) would be all they could teach, for fear of encouraging future judges to form opinions.
The alternative interpretation is that bias is not a problem, as long as you don't show it. I think that's just silly. Why does pretending that you have no views serve any legal purpose? Judges obviously will have views. Why is it a problem if they express them in public at times? Is it because the people involved with the case might then suspect them of bias? Well, wouldn't they be right? Why does revealing the bias not ok when having it is? I just don't see why pretending you don't have any views, when you obviously do, is supposed to preserve anything sacrosanct in the legal system. If Scalia makes it clear that he opposes forcing the removal of 'under God' from the pledge, how does that make him any less suitable for sitting in a courtroom to hear arguments for both sides of a dispute over that issue?
The only thing I can think of leads to the second problem I have with this overall argument. Perhaps, the defender of the judicial ethics orthodoxy will say, revealing your views before the fact will make you less likely to change your views in the face of argument. I can see that some people might, for pride reasons, not want to publicly change their mind on something they've already said publicly. I'm not sure why someone who has sworn an oath to the Constitution can do that in good conscience, but I guess the worry is that it would be a regular thing. I just don't see it. I just don't see it. Taking a view at one point does not guarantee that you won't be convinced by arguments for a different position once the thing comes to court. Any good judge will look at each case and its own evidence and arguments, realizing that previously considered evidence and arguments on the same sort of case will play a role but may not determine it. An important precedent may be revealed, a new argument may come forth, or facts of the case may show a difference from previously considered cases. So why would it be wrong to express a view about a case one hasn't written an official opinion on? I can't see a good answer to that.