John Roberts Jr., Chief Justice of the U.S. Supreme Court – Photo: Diego M. Radzinschi/ALM

Chief Justice John Roberts carefully walked through an ethical minefield recently to answer the president's criticism about the decision of “an Obama judge.” Clearly, there are no “Obama judges or Trump judges, Bush judges, or Clinton judges,” as the Chief Justice stated. Once confirmed, they are federal judges, and with lifetime appointments, combined with the inability to have their compensation “diminished” (Art.III, sec.1), politics and the political process should be no longer a part of their lives or impact on their decision-making. However, federal judges do come to the bench after personal and professional lives that mold their thinking and attitudes. As a result, all presidents select and nominate judges who they think will best advance and uphold their agenda. In that respect, there are “Obama judges” just as there are “Trump judges,” and that reality must be recognized. On the other hand, we believe the chief justice, as the leader of the federal Judiciary, was warranted in saying what he did. It is unusual for such a statement to be made in light of the Code of Judicial Conduct for United States judges, because of its requirement to “avoid impropriety and the appearance of impropriety, in all activities” (canon 2), avoid activities that “reflect adversely on the judge's impartiality” (canon 4), and “refrain from political activity“ (canon 5). But a judge “may speak, write, lecture, and teach on on both law-related and nonlegal subjects” (canon 4), “and participate in other activities concerning the law, legal system and the administration of justice “ (canon 4A), and Chief Justice Roberts' statement was little more than a civics lesson which advised of the role and ethics of federal judges and carefully avoided comment about the issues or merits of any case. Attacks on the judiciary cannot be deemed to be meritorious because of silence in response to commentary which receives widespread public attention, or by the failure to react.