Wishing all of our readers a Happy, Renewing — and of course, Ethical — New Year.
Looking forward to, among other great things, the judicial discipline summary for 2010 and a better disqualification mousetrap for 2011. JEF
Archive for December, 2010
Happy New Year
Posted by judicialethicsforum on Thursday, December, 30, 2010
Posted in Judicial Ethics Generally | Leave a Comment »
Re-elected Judges and Due Process
Posted by monroefreedman on Thursday, December, 30, 2010
Bob Vander Plaats, who heads the group Family Leader, led efforts that resulted in the removal of three Supreme Court justices in the November midterm election, for their role in a unanimous decision legalizing same-sex marriage He said that vote should send a message to the remaining four justices.
The state’s Supreme Court justices are appointed by the governor and serve eight-year terms. Voters have the option of retaining them when their terms expire. The November elections, when three justices were up for retention, marked the first time since the retention vote system was implemented in 1962 that voters didn’t retain a Supreme Court justice. Those justices will leave their posts at the end of December.
(From Law .com, by Michael J. Crumb)
Posted in Uncategorized | 1 Comment »
Power and Justice
Posted by monroefreedman on Wednesday, December, 29, 2010
I am reading with great pleasure Ludwig Lewisohn’s sequel to The Merchant of Venice, titled, The Last Days of Shylock. In it he describes the Doge and his Council, who had recently consigned the Jews to the Ghetto. The description fits too many judges (and, truth be told, some law professors): “those who deem that power confers wisdom and is one with justice.”
Coincidentally, I had recently read of the trial court judge who had held a prisoner in contempt (that is, as having obstructed justice) and whose ruling had been upheld on appeal. After the prisoner’s conviction and sentence had been entered, and the proceeding had concluded, the prisoner said, “F**k, Y’all.” Only those who deem that power confers wisdom and is one with justice — and with their own dignity — could render such judgments.
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New Scholarship: Pozen on Judicial Elections and Popular Constitutionalism
Posted by kswisher on Monday, December, 20, 2010
David Pozen has just married the practice of judicial elections to the popular theory of popular constitutionalism. My first thought: If he is right that judicial elections are really the best “vehicle for achieving popular constitutionalism [by being] genuinely empowering without being anarchic, accessible to the masses yet mediated by professionals, [and] transformative yet realistic,” then I must not be a popular constitutionalist. But his balanced and insightful analysis convinced me to read on. Here is the abstract:
One of the most important recent developments in American legal theory is the burgeoning interest in “popular constitutionalism.” One of the most important features of the American legal system is the selection of state judges—judges who resolve thousands of state and federal constitutional questions each year—by popular election. Although a large literature addresses each of these subjects, scholarship has rarely bridged the two. Hardly anyone has evaluated judicial elections in light of popular constitutionalism, or vice versa. This Article undertakes that thought experiment. Conceptualizing judicial elections as instruments of popular constitutionalism, the Article aims to show, can enrich our understanding of both. The normative theory of popular constitutionalism can ground a powerful new set of arguments for and against electing judges, while an investigation into the states’ experience with elective judiciaries can help clarify a number of lacunae in the theory, as well as a number of ways in which its logic may prove self-undermining. The thought experiment may also be of broader interest. In elaborating the linkages between judicial elections and popular constitutionalism, the Article aims to shed light more generally on some underexplored connections (and tensions) among theories and practices of constitutional construction, democratic representation, jurisprudence, and the state courts.
David E. Pozen, Judicial Elections as Popular Constitutionalism, 110 Colum. L. Rev. 2047 (2010), a link to which can also be found in Articles.
Posted in Judicial Campaigns, Judicial Ethics Generally, Judicial Selection | 1 Comment »
Swisher on Attorneys’ Judicial Campaign Contributions
Posted by kswisher on Monday, December, 20, 2010
I have posted a draft of my most recent article on SSRN. This one is on attorneys who contribute to judges’ election campaigns and then appear before those judges, and the Georgetown Journal of Legal Ethics will publish it in the winter or early spring. Judicial ethics takes a backseat (still a seat), but there should still be enough of it and judicial selection to interest readers, I presume. The abstract follows:
Lawyers as johns, and judges as prostitutes? Across the United States, attorneys (“johns,” as the analogy goes) are giving campaign money to judges (“prostitutes”) and then asking those judges for legal favors in the form of rulings for themselves and their clients. Despite its pervasiveness, this practice has been rarely mentioned, much less theorized, from the attorneys’ ethical point of view. With the surge of money into judicial elections (e.g., Citizens United v. FEC), and the Supreme Court’s renewed interest in protecting justice from the corrupting effects of campaign money (e.g., Caperton v. A.T. Massey Coal Co.), these conflicting currents and others will force the practice to grow both in its pervasiveness and in its propensity to debase our commitment to actual justice and the appearance of justice. This Article takes, in essence, the first comprehensive look at whether attorneys’ campaign contributions influence judicial behavior and our confidence in the justice system (they do), whether contributions have untoward systemic effects (again, they do), and most fundamentally, whether attorneys act ethically when they contribute to judges before whom they appear (they do not, all else being equal).
The article can be downloaded for free at this link, which can also be found in Articles.
Posted in Judicial Campaigns, Judicial Disqualification & Recusal, Judicial Ethics Generally, Judicial Selection | Leave a Comment »
Judge Reinhardt’s Refusal to Recuse Himself
Posted by monroefreedman on Friday, December, 3, 2010
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A Judge, An Exotic Dancer, Some Hard Drugs, and a U.S. Attorney
Posted by kswisher on Thursday, December, 2, 2010
I resisted posting on federal Judge Jack Camp’s (N.D. Ga.) problems when they came to public light. To be sure, the scandalous facts were magnetic (see here), but his alleged conduct was so plainly improper — and frankly dumb — that a post felt too obvious and too much like shooting someone in a deathbed. But thanks to the Georgia U.S. Attorney, there is now something worth noting here. In a relatively quick timeframe and proactive manner, the U.S. Attorney (Sally Yates) has announced that any defendant who was sentenced under Judge Camp — or at least the bad version of Judge Camp, who was using drugs and carrying weapons for a proven five-month period — can request an unopposed resentencing (unopposed in obtaining a resentencing, that is, not in a request for probation). She noted that the federal investigation had uncovered accusations of Judge Camp’s impairment (via “marijuana, powder cocaine, Xanax, Roxicontin, and other unknown prescription painkillers” and “some may have been taken while Camp was also consuming alcohol”) and racial bias (in that Judge Camp suggested to an informant that he had sentenced an African-American male more harshly and a caucasian female more leniently owing to race). Again, as a matter of judicial ethics, such allegations, if true, are easily categorized as unethical. What is laudable, however, is the U.S. Attorney’s proactive attempt to remedy even the appearance of incompetence and bias, rather than engage in protracted litigation about what, in fact, Judge Camp had on his mind (e.g., drugs or racism) at the time of the sentencings. The U.S. Attorney prefaced her remarks with, and was apparently pointed in the right direction by, her “one responsibility — to seek justice.” The local news has her full statement here.
Posted in Canon 1, Canon 2, Canon 3, Judicial Ethics Generally | 1 Comment »
Keith Swisher on Pro-Prosecution Judges
Posted by monroefreedman on Thursday, December, 2, 2010
I highly recommend Keith Swisher’s article, Pro-Prosecution Judges: “Tough on Crime,” Soft on Strategy, Ripe for Disqualification. It’s thoroughly researched and powerfully written. 52 Arizona L. Rev. 317 (2010).
Posted in Judicial Disqualification & Recusal | 1 Comment »
The Judicial Ethics Forum (JEF) 
According to Law.com, the motion was based on allegations that the judge’s wife’s is a longtime advocate for gay rights, that she conferred with the plaintiffs about the suit before it was filed, and that her office, the ACLU, filed an amicus brief in the trial court in the same case.
In his short memo denying the motion, the judge did not deny any of the allegations. He simply said that he could be impartial.
First, his saying that does not meet the statutory requirement.
Second, his wife’s record of advocacy is not in itself enough.
However, if she did confer with the plaintiffs in planning the suit, and if she is still Director of a an organization that filed an amicus in the case, I believe that a reasonable person might question the judge’s impartiality – not would question, but might question, and not might decide, but might question. A principal reason for my conclusion is that a person who has been involved in this very litigation is in a position to have frequent ex parte communications with the judge.