The New York Times is in a lather over the recent federal court ruling affirming the right of judges to speak freely on matters political. The case,

Spargo v. New York State Commission on Judicial Conduct, involves Justice Thomas Spargo, a Supreme Court Justice for the Third Judicial District of the State of New York. Justice Spargo was charged by the judicial conduct commission with, among other things, serving as an observer of the Florida recount on behalf of the Bush campaign and speaking at a Conservative Party dinner, both while serving as a Town Justice. A federal district court judge, David Hurd, ruled last week that Justice Spargo’s actions were protected under the First Amendment.

Nothing so enrages the Times as the assertion that the First Amendment protects the rights of individuals to engage in politics — one need only peruse their advocacy of the regulation of political speech under the banner of campaign finance reform. The Spargo decision, challenging as it does the fallacy of judges being above politics, stirs another of the bees in their collective bonnet. “Justices have long been barred from engaging in partisan political activity,” the Times began in an editorial yesterday.

What the Times meant by”have long been barred” is a scant 30 years. As Judge Hurd pointed out in his opinion, “It was not until 1972 that a Code of Conduct meant to be enforceable was promulgated” here in New York. After this gaffe, the Times intoned this notion: “The courts derive their legitimacy from their perceived neutrality. If judges are actively involved in partisan politics, their decisions will be seen as political, no different than a vote by a legislator.”

Apart from the fact that the Times has been busy for years trying to create legislators immune from politics, the fact is the paper doesn’t know what it’s talking about. We ran the Constitution through several search engines and the words “perceived neutrality” are nowhere to be found. The courts derive their legitimacy from Article III of a Constitution that draws its legitimacy from the consent of the governed.

While the Times may perceive judges as neutral — at least ideally — the founders of this nation were under no such misimpressions. They understood the cutthroat nature of politics and the dirty, ugly, mean business of rivalries based on regional and other interests. That is why they established a novel system of appointment in the federal government that incorporated both the president and the Senate.

As Hamilton wrote in Federalist No. 76: “To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.” The idea was not to find neutral judges or political eunuchs; it was to balance political interests.

If the founders expected anything from the judiciary, it was not neutrality, but independence. These are distinct concepts. To be independent means to be free from reprisal for exercising legitimate authority. That is why Article III, Section 1 of the Constitution gives judges life tenure during good behavior and forbids the reduction of their compensation.

In Federalist No. 78, Hamilton explains: “The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government.…[I]n a republic it is…[an] excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.”

Independence is the key, and on that score New York could make improvements. Neutrality is a fiction. As Justice Scalia wrote for the majority in the case of Republican Party of Minnesota v. White — striking down a Minnesota law prohibiting judicial candidates from announcing their positions on issues that might come before their court — “avoiding judicial preconceptions on legal issues is neither possible nor desirable.” If Justice Spargo has sympathies for the Republican Party, he will hold these sympathies one way or the other — better for the voters to be aware of them.