National Security And Judicial Ethics: The Exception To The Rule Of Keeping Judicial Conduct Judicial And The Politicization Of The Judiciary

This article is divided into three sections, and it incorporates original research from the personal correspondences of several judges and justices. This article includes unpublished correspondences from various judicial collections at the Library of Congress, the Bentley Historical Library at the University of Michigan, the Washington and Lee School of Law’s special collections, the Richard Nixon and Ronald Reagan Presidential Libraries, the National Library of Australia in Canberra, and Canada’s National Archives in Ottawa. The first section analyzes the current framework governing judicial disqualification based on the separation of powers doctrine as well as the right to an impartial judiciary, beginning with a discussion of Mistretta v. United States, a non-national security decision. This section also provides examples of how judicial selection based on pre-judicial service in the national security arena may affect judicial neutrality and enable a willingness of judges to become involved in extra-judicial activity.The second section contains examples of both judicial service on extra-judicial matters as well as judicial aid to the executive branch. Lastly, this section provides a comparative framework on how the Supreme Court of Canada and the High Court of Australia, in light of their national security experiences during the Cold War, have fashioned rule-sets that serve as barriers to extra-judicial activities. Section III concludes with an argument for greater openness in the judiciary, so that historians need not be the first to assess the propriety of a judge serving over a particular cause of action.