Daniel H. Foote, Restrictions on Political Activity by Judges in Japan and the United States: The Cases of Judge Teranishi and Justice Sanders, 8 Wash. U. Global Studies L. Rev. 285 (2009), https://digitalcommons.law.uw.edu/faculty-articles/1000
In the late 1990s, similar dramas relating to political activity by judges were playing out on opposite sides of the Pacific Ocean. The cases involved a Japanese decision concerning an assistant judge of the Sendai District Court, Teranishi Kazushi, and an American decision relating to a newly sworn-in justice of the Supreme Court of the State of Washington, Richard Sanders. Both attended gatherings with distinctly political agendas. Both made brief remarks implying, but never directly stating, their support for the agendas presented. Both were censured for having engaged in impermissible political activity. Both appealed those censures, ultimately as far as the Grand Bench of the Supreme Court of Japan and the Washington State Supreme Court, respectively. The decisions examined nearly the same set of factors and followed similar reasoning.
The most salient difference between the two cases lies in their final outcomes. In a split, ten-to-five decision, the Japanese Supreme Court found that Teranishi had engaged in impermissible political activity and upheld the censure; however, the Washington State Supreme Court unanimously overturned Sanders' censure, finding that his actions had not overstepped the applicable legal boundary. Perhaps even more striking than the difference in outcomes, however, is the difference in procedure between the two cases. In Washington State, all but the initial stage of the process was conducted in the open, subject to broad scrutiny by the public. In Japan, in contrast, most of the process was conducted behind closed doors, away from public scrutiny. This difference, I would submit, reflects a difference in the underlying philosophy of the two judicial systems. In the United States, public knowledge of who judges are, what they think, and how the judicial system operates is viewed as important for maintaining public trust in the judiciary. In Japan, however, the fundamental ethos of the judiciary is one of uniformity and anonymity. People's trust in the impartiality and fairness of judges rests largely on the view that the identity of the judge does not matter, that procedures and outcomes will be the same no matter who the judges are. In keeping with this ethos, which I have labeled elsewhere as Japan's "nameless, faceless judiciary," differences in judges' personalities and views, and the workings of the judiciary, are submerged and hidden from public view.
This Essay begins by setting out the basic facts of the two cases. After briefly examining the respective outcomes and legal reasoning, the Essay proceeds to a comparative examination of the procedures and the basic stance of the two systems.