The Judicial Ethics Forum (JEF)

An Academic Discussion of Judicial Ethics, Discipline & Disqualification

Archive for March 23rd, 2009

The Federal Judicial Ethics Code Gets a Makeover

Posted by kswisher on Monday, March, 23, 2009

The Judicial Conference of the United States has (gently) amended the Code of Conduct for United States Judges.  The revisions, inspired in part by the 2007 Model Code of Judicial Conduct, can be found here and will take effect on July 1, 2009.

It has been reported in the press that the new federal code contains for the first time a definition of the appearance of impropriety.  To be sure, the new code does contain a definition of the appearance of impropriety: “An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired.”  Code of Conduct for United States Judges Canon 2 cmt. (2009).  The “old” (but currently in effect) code, however, contains a similar definition: “The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.”  Code of Conduct for United States Judges Canon 2 cmt. (2000).  To me, the juxtaposition shows that the only significant change is the explicit inclusion of “temperament” in the test for the appearance of impropriety in the new code, but that trait certainly is not “new” to impropriety analysis.  The new definition also omits the word “perception,” which arguably dilutes a true “appearance” standard.


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Supreme Court Hears Oral Argument in Caperton v. A.T. Massey Coal Co.

Posted by kswisher on Monday, March, 23, 2009


The Supreme Court recently released the transcript of the oral argument in the West Virginia disqualification case (see Justice for Sale?), which was argued on March 3, 2009.  Because, for example, Justice Kennedy seemed favorably inclined [see, e.g., Tr. at 33], I am cautiously optimistic for a five-to-four decision in favor of due process.  To read the full transcript, click here.  My favorite lines include:

§  JUSTICE STEVENS:  “We have never confronted a case as extreme as this before.  This fits the standard that Potter Stewart articulated when he said ‘I know it when I see it.’  (Laughter.)” 

§  COUNSEL FOR MASSEY COAL: “I understand the . . . concerns about having the [apparently biased] judge making the decision about whether recusal is required, but that is not the practice of this Court, and if it’s not the practice of this Court, I frankly doubt it’s unconstitutional.”

§  JUSTICE BREYER: “The debt of gratitude . . . isn’t the theory that underlies [the due process challenge], though it may in part. . . .  A normal human being also thinks, if I play my cards right, maybe [the substantial expenditure] will be repeated, and they’ll want to keep me in office.  And we have the fact of how it looks, and we don’t have a situation where the something like this is inevitable, where you appoint judges.”

§  JUSTICE SOUTER: “If one is going to go into that calculation, one is going to assume that in eight years, there’s going to be another three million dollars waiting to be spent.”

§  JUSTICE BREYER: “Call [the proposed due process standard] a ‘probabilty’ [of bias]; call it an ‘appearance.’  Use the language that you want, but put them together, and they spell ‘mother.'”

§  JUSTICE SCALIA: According to Justice Scalia’s rather trusting views of judicial elections, if someone were to contribute money to his hypothetical campaign, “that person contributed money to my election because he expected me to be a fair and impartial judge, and I would be faithful to that contributor only by being a fair and impartial judge.  That is showing gratitude.”



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