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Archive for the ‘Judicial Ethics Generally’ Category

A Supreme Victory for Government Ethics and Judicial Recusal

Posted by kswisher on Tuesday, June, 14, 2011

The Supreme Court just upheld Nevada’s Ethics in Government Law, which requires (in short) that public officials refrain from voting on matters in which they have personal interests.  In this case, a city council member voted to approve a casino despite the fact that his campaign manager and close friend had a financial interest in the casino’s development.  The Nevada Ethics Commission censured the council member, and in response, he brought a First Amendment challenge, claiming (among other things) that his vote constituted protected speech.  Rejecting the challenge, the Court concluded (again in short) that recusal rules in these circumstances do not (and did not ever) violate the First Amendment.  The Court was unanimous (as to the result, not as to the reasoning). 

The resulting opinions are relevant and indeed crucial for at least two reasons: (1) the seven-member opinion of the Court strongly validates the historical pedigree and constitutional legitimacy of American recusal laws, both legislative and judicial; and (2) both Justice Scalia (for seven justices) and Justice Kennedy (for his own pivotal self) noted that recusal rules may, quite understandably, be crafted more rigidly for the judiciary than for the legislature.

In particular, Justice Scalia acknowledged that “[t]here are of course differences between a legislator’s vote and a judge’s, and thus between legislative and judicial recusal rules; nevertheless, there do not appear to have been any serious challenges to judicial recusal statutes as having unconstitutionally restricted judges’ First Amendment rights.”  Op. at 6 & n.3 (distinguishing White).  Justice Kennedy noted in his concurrence that “[t]he Court has held that due process may require recusal in the context of certain judicial determinations, see Caperton v. A. T. Massey Coal Co., 556 U. S. ___ (2009); but as [my concurrence] indicates, it is not at all clear that a statute of this breadth can be enacted to extend principles of judicial impartiality to a quite different context [i.e., the legislative and perhaps regulatory context].  The differences between the role of political bodies in formulating and enforcing public policy, on the one hand, and the role of courts in adjudicating individual disputes according to law, on the other, . . . may call for a different understanding of the responsibilities attendant upon holders of those respective offices and of the legitimate restrictions that may be imposed upon them.”

Here is the full opinion: Nevada Commission on Ethics v. Carrigan; see also coverage at the Election Law Blog.

Posted in Judicial Campaigns, Judicial Disqualification & Recusal, Judicial Ethics Generally | Leave a Comment »

The Sixth Circuit and Historically White Country Clubs

Posted by judicialethicsforum on Monday, June, 13, 2011

The Judicial Council of the Sixth Circuit recently dismissed a complaint against Chief Bankruptcy Judge George C. Paine, concluding that the judge could permissibly remain a member of an exclusively white-male country club.  Although the club does have “lady members” and one African-American male non-voting member, the club’s 600 voting members are all white.  The complaint alleged, therefore, that the judge violated Canon 2A and Canon 2C of the Code of Conduct for United States Judges.  The Council’s vote was deeply divided (10-8), with the slight majority voting to dismiss the complaint.  The dissent noted, among other points, that Judge Paine should have resigned at the moment (or at a minimum, within two years after) he realized that his efforts to change the Club’s discriminatory practices had failed.  [Read the full opinion here.]

Some press coverage follows: New York Times; Wall Street Journal; and The Tennessean.

Posted in Canon 2, Judicial Ethics Generally | Leave a Comment »

Supreme Court Justices Do Not Mind Being “Bound” by an Ethics Code so Long as They Are Not “Legally” Bound by an Ethics Code

Posted by judicialethicsforum on Sunday, May, 1, 2011

In a recent House budget hearing, Supreme Court Justices Breyer and Kennedy responded to questions from Rep. Jose Serrano (D-NY) regarding recent calls to bind the Supreme Court to the Code of Conduct for United States Judges.  Justice Kennedy responded first by stating the “Code of Conduct does apply to [us], in the sense that we have agreed to be bound by them.”  He further stated that following the rules of ethics is “part of our oath and part of our obligation.”  Justice Kennedy went on to caution, however, that it would be “structurally unprecedented” and a “legal problem” for the Judicial Conference of the United States (composed of district and circuit judges) to bind the Supreme Court to its rules. 

Justice Breyer responded to the same question by stating that the Supreme Court Justices should be bound by the rules of ethics.  He did not, however, believe that they were bound in a “legal” sense, and any such binding should not be accomplished by legislation.  He also emphasized a few times that he follows the same rules—and the same procedures for interpreting those rules—as district and circuit judges.  He then arguably contradicted himself by adding that being a Supreme Court Justice requires “you to think about it in a different way,” because unlike other federal judges, “you have a duty to sit.”  [For a good work on the elusive “duty to sit,” see Jeffrey W. Stempel, Chief William’s Ghost: The Problematic Persistence of the Duty to Sit, 57 Buff. L. Rev. 813 (2009); see also Keith Swisher, Pro-Prosecution Judges, 52 Ariz. L. Rev. 317, 372-73 (2010).]

A video recording of the hearing can be seen here (the relevant testimony runs from approximately minute 26:00 through minute 33:00).

Posted in Judicial Ethics Generally | 1 Comment »

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 »

New York to Bar Judicial-Campaign-Contributing Attorneys from Courtroom for Two Years

Posted by judicialethicsforum on Monday, February, 28, 2011

In a recent move that has attracted much press, the New York State Administrative Board of the Courts has proposed a rule that would require attorneys who donate $2,500 and law firms that donate $3,500 to any judge be barred from appearing before that judge for a period of two years.  This proposed rule is more flexible than a 2003 task force proposal, which recommended a five-year ban on attorneys who had donated over $500 to any judge.  That proposed rule was said to be too onerous in the many less-populated areas, which often had only one full-time judge.

To read more on this important development, click on one or more of the following outlets: Brennan Center (calling the rule “a victory for recusal reform”); NY Times (a “bold step”); and The Wall Street Journal (“It would be one of the strictest disqualification rules in the nation”); see also generally Keith Swisher, Legal Ethics and Campaign Contributions: The Professional Responsibility to Pay for Justice, 24 Georgetown J. Legal Ethics (forthcoming 2011).

Posted in Judicial Campaigns, Judicial Disqualification & Recusal, Judicial Ethics Generally | Leave a Comment »

Supremely Unethical

Posted by kswisher on Monday, February, 28, 2011

100 Law Professors have signed a letter to Congress (particularly, the House and Senate Judiciary Committees), urging that the Supreme Court should be bound, finally, by a code of judicial ethics.  Either the substance of the letter or (more likely) the methodology for collecting signatures is questionable, because several big names in judicial ethics are noticeably absent.  To the letter’s credit, however, the lack of binding Supreme Court ethics rules is indeed one of the single most embarrassing things in the judicial ethics field.  It is breathtakingly hypocritical that all of the federal (and state) judiciary underneath the Supreme Court must comply with a code to which the Court is not likewise held accountable.  The long-overdue letter can be read here.

Posted in Judicial Ethics Generally | 1 Comment »

Happy New Year

Posted by judicialethicsforum on Thursday, December, 30, 2010

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

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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 »

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 »

Judicial Ethics in Understanding Lawyers’ Ethics

Posted by monroefreedman on Monday, November, 29, 2010

The new (4th) edition of Understanding Lawyers’ Ethics has a 40-page chapter on Judges’ Ethics.  Sections include (among others):

THE PRACTICAL ADVANTAGES OF AN APPEARANCES RULE

SOME IMPLIED EXCEPTIONS TO DISQUALIFICATION
[1] The Judicial Source Exception
[2] Disqualification Based on a Judge’s Prior Commitment to Issues or Causes
[3] Disqualification Based on the Judge’s Religion, Race, or Gender
[4] Disqualification Based on an Implied Bias for or Against a Class of Litigants
[5] The Rule of Necessity
[6] Friendships Between Judges and Lawyers Appearing Before Them

ELECTED JUDGES AND DENIAL OF DUE PROCESS

JUSTICE SCALIA’S DENIAL OF RECUSAL IN THE CHENEY
CASE

JUSTICE SCALIA’S FAILURE TO RECUSE HIMSELF IN
BUSH v. GORE

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

The Old News of The New Politics

Posted by judicialethicsforum on Sunday, November, 21, 2010

An instant classic, The New Politics of Judicial Elections, 2000-2009: Decade of Change, has been released for several months now.  The study charts a decade of degeneration in judicial elections in the United States.  Quite deservingly, the study has already received significant publicity (and it even comes complete with a foreword by Justice Sandra Day O’Connor), but we would be remiss not to mention it here as well. 

Posted in Judicial Campaigns, Judicial Disqualification & Recusal, Judicial Ethics Generally | 1 Comment »

Keeping Up With The Justices

Posted by kswisher on Sunday, November, 21, 2010

It has been tough lately to keep up with the Justices of the Supreme Court and their ethics.  Various allegations recently have been lodged against various justices: Justice Scalia (Koch-brothers-conspiring); Justice Thomas (same, and Tea-Party-marrying); Retired Justice Sandra Day O’Connor (robo-calling); and Justice Alito (Spectator-supporting).  To be sure, much of this is much ado about nothing, but some of it is about something (try, for instance, the appearance of impartiality), which is why I like and agree with the title of Dahlia Lithwick’s recent piece in Slate — Running with Gavels: Justices Need to Set Clearer Rules About Partisan Political Activity.  Click on it for a good current-events survey of the Justices and their political affairs. 

UPDATE: By agreeing to speak semi-privately to the Tea Party Caucus, Justice Scalia has just upped his bid to be the most controversial Supreme Court Justice in terms of partisanship and disqualification.  For a good discussion of the issues, click on Legal Ethics Forum.

Posted in Judicial Ethics Generally | Leave a Comment »

Warning the Public About Judge Keller

Posted by kswisher on Saturday, July, 17, 2010

In a surprising, but just, twist, the Texas Commission of Judicial Conduct  — contrary to the ambivalent findings of its special master — has issued a “public warning” against Presiding Judge Sharon Keller for the time when she let a capital defendant be executed notwithstanding meritorious grounds for a stay (for a more detailed account of her actions, see the earlier post here).  Among other violations, the Commission found that Keller violated Canon 3B(7) (renumbered 3B(8) in the Texas Code), for failing to accord the defendant and his lawyers the right to be heard according to law.  She may appeal.  In addition to this public shaming, this controversy ultimately caused the Texas Ethics Commission (a separate regulatory body) to investigate Keller’s financial disclosure statements, and on finding significant failures to disclosure, it levied a record fine of $100,000 against her.  

Read the public warning here; and read the order imposing the fine here

UPDATE: In yet another twist, a Texas special court of review dismissed the charging document on the ground that the state constitution does not permit the sanction of “public warning,” only “censure” (and recommendations for retirement or removal).  The court did not “express an opinion concerning the merits of the accusations against Judge Keller,” but its disposition effectively precludes the Texas Commission on Judicial Conduct from re-charging her.  That disposition makes little sense to me in this context, provided that the re-charging and prosecution were to accord her due process (an issue obviously not addressed or perhaps even ripe).  The local news station has linked to the full opinion here

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

New Works in the Articles Archive

Posted by judicialethicsforum on Tuesday, June, 1, 2010

N.B. Several new articles — primarily addressing Caperton and its aftermath — appear on the Articles page.   

Posted in Judicial Ethics Generally | Leave a Comment »

New Scholarship: Sample on Caperton and Post-Caperton State Court Reform

Posted by judicialethicsforum on Saturday, May, 22, 2010

Professor James Sample (Hofstra), formerly of Brennan Center fame, has just completed two fine works on Caperton and state court responses.  Here is the abstract to the first, which provides a good current-events survey of post-Caperton developments and can be found in this year’s Joint American Judicature Society-Drake Law Review Symposium:

This Article considers the significant state court reform developments in the year following the Supreme Court’s landmark decision in Caperton v. A.T. Massey Coal Co., as well as ancillary federal developments, including renewed congressional interest in judicial disqualification. Picking up on the author’s view that “paradoxically for a decision overturning a state justice’s non-recusal, the majority’s approach is a model of cooperative federalism,” the Article focuses primarily on the initial developments pertaining to money in the courts in Wisconsin, Michigan, and West Virginia in the short period since the decision. The Article notes that while recusal practices have certainly been one focal point of developments in the states, Caperton has also provided a significant boost to judicial public financing. After considering tangible developments in the three identified states, the Article briefly points to more nascent judicial independence efforts in other states, in which Caperton connections are less direct, but where the case is nonetheless figuring prominently in rejuvenated efforts to modify judicial selection practices. The Article asserts that, while not all of the post-Caperton developments have improved the judicial impartiality landscape, on balance, the decision is already producing meaningful improvements in protecting the courts from the influence of money.

James J. Sample, Court Reform Enters the Post-Caperton Era, 58 Drake L. Rev. 787 (2010).  Featured in Syracuse Law Review’s Caperton Symposium (which, by the way, contains several other good reads), Professor Sample’s second article makes the provocative claim, among others, that Caperton is a model of federalism.  James J. Sample, Caperton: Correct Today, Compelling Tomorrow, 60 Syracuse L. Rev. 293 (2010). 

Posted in Judicial Campaigns, Judicial Disqualification & Recusal, Judicial Ethics Generally | Leave a Comment »

Impending Judicial Ethics Symposium

Posted by judicialethicsforum on Wednesday, March, 17, 2010

The University of the Pacific McGeorge School of Law is hosting a judicial ethics symposium shortly — April 9-10, 2010.  Some greats will be presenting, including Mark Harrison and Charlie Geyh (among others).   

Here are the panel topics:

  • The Ethical Judge
  • Judicial Elections, Financing and the Independence of the Bench
  • The California Commission for Impartial Courts
  • Roundtable – Judges, (in)Civility and the Media
  • Regulating Ethics: Judicial Education and Codes of Conduct
  • Ethics for Judges and Tribunals: An International Perspective

For the detailed Program, click here.

For more information or to RSVP: go.mcgeorge.edu/JudicialEthics

Posted in Judicial Ethics Generally | Leave a Comment »

Judicial discipline in 2009

Posted by graycynthia on Monday, February, 1, 2010

In 2009, four judges or former judges were removed from office as a result of state judicial discipline proceedings (in one of those cases, the judge was permanently disbarred, effectively removing him from office).  In addition, one former part-time judge was permanently barred from serving in any judicial capacity, and one judge was suspended without pay until the end of his term.  Seven judges resigned (or agreed not to run at the expiration of their terms) in lieu of discipline pursuant to agreements with judicial conduct commissions that were made public.  (These figures do not include proceedings pending before a state supreme court.)

95 additional judges (or former judges in seven cases) received other public sanctions in 2009.  In approximately 53 of those cases, the discipline was imposed pursuant to the consent of the judge.  In addition to the sanction, in some of those cases, the judges were ordered to complete judicial ethics training, were placed on probation and required to complete a mentorship, or were barred from seeking judicial office in the state again.

There were 13 suspensions without pay, ranging from 30 days to one year.  One suspension also included a reprimand, one included a reprimand and censure, and one included a reprimand as an attorney.

In addition, 21 judges were publicly censured; 37 were publicly reprimanded (one reprimand also included a $25,000 fine); 15 were publicly admonished; and five received public warnings.

Two private reprimands were made public with the judge’s agreement.  In one case, a judge was ordered to establish his primary residence in the county where the law required that he reside.  Bar discipline authorities sanctioned one former judge for conduct on the bench.

To compare, in 2008, 13 judges were removed; 1 former judge was permanently barred; 1 judge was found to be permanently disabled; 1 was permanently retired; 2 were suspended with pay until the end of their terms; 11 judges resigned or retired pursuant to public agreements; and 114 judges or former judges received other public sanctions.  Between 1980 and the end of 2008, approximately 367 state judges had been removed from office as a result of state judicial discipline proceedings.

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Congressional Hearings on Disqualification and Impeachment

Posted by kswisher on Wednesday, January, 20, 2010

Last month, the House Courts Subcommittee and the Task Force on Judicial Impeachment addressed two pressing issues: (1) the rules of disqualification post-Caperton and (2) the impeachment of Judge Porteous.  Helpfully, both hearings are captured on video, feature the appearances of a few of the true experts on these subjects, and include links to their written testimony.  The point of this post is neutral reportage, but to editorialize just a bit: Some interesting testimony lurks in these links (take, for example, that of Professor Eugene Volokh [UCLA] whose mostly entertaining written testimony on the state of disqualification law somewhat shockingly recommends no particular action and doubts the existence of serious problems, at least of the type that could be remedied through disqualification law).

(1) Hearing on Examining the State of Judicial Recusals after Caperton v. A.T. Massey

(a) To watch the hearing, click here (which may require RealPlayer);

(b) To view the written testimony, click on the name of the respective witness:

M. Margaret McKeown
U.S. Courts of Appeals
Ninth Circuit
Charles G. Geyh
Associate Dean of Research
John F. Kimberling Professor of Law
Indiana University, Maurer School of Law
Richard E. Flamm
Author of Judicial Disqualification: Recusal and Disqualification of Judges; Conflicts of Interest and Law Firm Disqualification
Eugene Volokh
Gary T. Schwartz Professor of Law
University of California
Norman L. Reimer
Executive Director
National Association of Criminal Defense Lawyers
Arthur D. Hellman
Professor of Law
University of Pittsburgh

 

(2) Hearing to Consider Possible Impeachment of United States District Judge G. Thomas Porteous, Jr., Part IV

(a) To watch the hearing, click here (which may require RealPlayer);

(b) To view the written testimony, click on the name of the respective witness:

Akhil R. Amar
Sterling Professor of Law and Political Science
Yale Law School
Charles G. Geyh
Associate Dean for Research and the John F. Kimberling Professor of Law
Indiana University Maurer School of Law
Michael J. Gerhardt
Samuel Ashe Distinguished Professor in Constitutional Law & Director, Center for Law and Government
University of North Carolina School of Law

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

New Scholarship: Swisher on Tough-on-Crime Judges

Posted by judicialethicsforum on Monday, November, 30, 2009

Prof. Keith Swisher has posted a draft of his forthcoming article on pro-prosecution judges, judicial elections, and disqualification.  Here is the abstract:

In this Article, I take the most extensive look to date at pro-prosecution judges and ultimately advance the following, slightly scandalous claim: Particularly in our post-Caperton, political-realist world, “tough on crime” elective judges should recuse themselves from all criminal cases. The contextual parts to this claim are, in the main, a threefold description: (i) the “groundbreaking” Caperton v. A.T. Massey Coal decision, its predecessors, and its progeny; (ii) the judicial ethics of disqualification; and (iii) empirical and anecdotal evidence of pro-prosecution (commonly called “tough on crime”) campaigns and attendant electoral pressures. Building on this description and the work of empiricists, we bridge the gap between these tough-on-crime campaign promises and subsequent tough-on-crime adjudications. And in the final analysis, the thesis — namely, that tough-on-crime judges should recuse themselves in most, and probably all, criminal cases in light of personal and systemic biases — is corroborated not just by Supreme Court reasoning and language, but even more importantly (at least from my perspective as an ethics professor), by the rules of judicial ethics. Thus, pro-prosecution judges and their not-too-sophisticated message — “me tough on crime, you soft on crime” — should cease and desist or be ceased and desisted.

Parts.  Part I briefly describes elective judicial selection systems and thoroughly describes “tough-on-crime” judges, their messages, and their motivations. Part II, the core of the analysis, runs tough-on-crime judges through the constitutional, ethical, and other-legal frameworks of disqualification. All of these frameworks — some four or five different legal and ethical barriers, depending on one’s jurisprudential view — ultimately lead to the same place, mandatory disqualification. Part III critically appraises elective systems, the theoretical and economical costs that those systems impose on judges and litigants, and the alternatives, including broadly or narrowly targeted disqualification, public financing, and forced silence. By the Conclusion, the analysis has pointed strongly toward a broad-based, mandatory-disqualification remedy.

Keith Swisher, Pro-Prosecution Judges: “Tough on Crime,” Soft on Strategy, Ripe for Disqualification, 52 Ariz. L. Rev. (forthcoming 2010).  A link to which can also be found in Articles

Posted in Judicial Campaigns, Judicial Disqualification & Recusal, Judicial Ethics Generally, Judicial Selection | Leave a Comment »