The Judicial Ethics Forum (JEF)

An Academic Discussion of Judicial Ethics, Discipline & Disqualification

Archive for March, 2011

New Scholarship: McKoski on Actual v. Apparent Impartiality

Posted by judicialethicsforum on Sunday, March, 27, 2011

Judge McKoski (recently ret.) has again contributed to the corpus of judicial ethics scholarship.  His thought-provoking new work can be downloaded here, and the abstract follows: 

The legitimacy of the judicial branch of government depends on the impartiality of its judges. Nineteenth century lawyers and litigants understood this fact and regarded actual impartiality as the fundamental value of judicial ethics. Today, the emphasis on maintaining judicial legitimacy has shifted from reality to perception. Modern codes of judicial ethics are designed first and foremost to protect the “appearance” of impartiality by barring any personal, financial, civic, or political activity of a judge that may be perceived as adversely reflecting on judicial objectivity. Insuring impartiality in fact has become a secondary concern.

The career of nineteenth century judge David Davis illustrates that actual judicial impartiality, not the appearance of impartiality, sustains public faith in the judiciary. Davis was universally recognized as an impartial judge even though his off-bench alliances, especially with Abraham Lincoln, shouted out partiality and favoritism. After establishing Judge Davis’s unimpeachable reputation for courtroom fairness, the Article evaluates his off-bench activities under modern rules of judicial conduct. Next, the Article traces the transition from actual impartiality as the measure of a judge’s worth in Davis’s time to today’s emphasis on appearances. Finally, modest reforms in judicial selection, evaluation, education, and discipline are offered as a means of reestablishing actual impartiality as the fundamental value of judicial ethics.

Raymond J. McKoski, Reestablishing Actual Impartiality as the Fundamental Value of Judicial Ethics: Lessons from “Big Judge Davis”, 99 Ky. L.J. 259 (2010-2011). 

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Judicial Ethics in the News

Posted by judicialethicsforum on Sunday, March, 27, 2011

Here are two noteworthy items in the world of judicial ethics:

(1) Adding heat to the recent law professors’ letter to Congress calling for ethical regulation of the Supreme Court, Representatives Chris Murphy and Anthony Weiner have introduced a bill named the Supreme Court Transparency and Disclosure Act.  In essence, the resulting law would (1) apply the Code of Conduct for United States Judges to the Supreme Court Justices, (2) require Justices to issue reasons for recusing or failing to recuse themselves, and (3) provide a procedure for review whenever Justices deny motions to disqualify.   [For some critical commentary, see here, where Brookings asserts that similar reform proposals would transgress  Article III, § 1, vesting judicial power in “one Supreme Court.”]

(2) There has been yet another disappointment from one of the most disappointing cases in Wisconsin.  After the Wisconsin Supreme Court Justice Gableman approved a misleading judicial campaign ad, after he then refused to recuse himself in a criminal matter in which his impartiality was questioned, and after the Wisconsin Supreme Court split straight down the conservative-liberal divide both in deciding whether to discipline Gableman and in deciding whether to review his failure to recuse himself (see here for details), we now learn that another Justice (Prosser) called the Chief Justice (Abrahamson) a “total bitch.”  He allegedly topped off this statement with a threat: “I will destroy you.”  If true, it should be noted that state judges on lower courts are often disciplined for such “intemperate” behavior. 

Posted in Canon 2, Canon 3, Judicial Disqualification & Recusal, Judicial Ethics Generally | Leave a Comment »