The Judicial Ethics Forum (JEF)

An Academic Discussion of Judicial Ethics, Discipline & Disqualification

New Scholarship: Lubet and Diegel on Supreme Court Ethics Reform

Posted by judicialethicsforum on Thursday, February, 21, 2013

This fairly recent research paper seeks ethics and disqualification reform in the Supreme Court:

The United States Supreme Court is the only court in the United States without a clearly defined ethics code. In the wake of the controversy over possible leaks from justices’ chambers following the decision in NFIB v. Sebelius, and in light of legislation recently introduced in Congress, this paper suggests two reforms for the Supreme Court. First, the time has finally come for the Court to adopt a comprehensive Code of Conduct. Second, the Court should alter its current recusal practice – in which decisions are made exclusively by individual justices – and instead resolve disqualification motions by a vote of the full court.

Steven Lubet & Clare Diegel, Stonewalling, Leaks, and Counter-Leaks: Scotus Ethics in the Wake of NFIB v. Sebelius (Sept. 10, 2012).

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

NBC’s The West Wing Campaigns for a Judicial Candidate

Posted by judicialethicsforum on Wednesday, September, 26, 2012

In one of the most noteworthy and actually entertaining judicial campaign ads, the cast of The West Wing reunited to support Bridget Mary McCormack for the Michigan Supreme Court.  The ad also offers an important announcement that transcends McCormack’s campaign: because voters frequently and reflexively vote straight “R” or “D” (which is one of the reasons why the concept of popular judicial election can be problematic), those voters are, perhaps inadvertently, not voting at all on the non-partisan portion of their ballots.   Many states, including Michigan, use non-partisan judicial elections.  Here is the ad:

Posted in Judicial Campaigns, Judicial Selection | 1 Comment »

The ABA Is Adjusting the Disqualification Rules After Caperton

Posted by judicialethicsforum on Wednesday, September, 26, 2012

The ABA’s standing committees on ethics and discipline are considering changes to the disqualification rule (2.11) of the Model Code of Judicial Conduct in light of Caperton and the problems of judicial campaign contributions and expenditures.  The possible revisions are pursuant to Resolution 107, which reads in relevant part:

That the Standing Committee on Ethics and Professional Responsibility and the Standing Committee on Professional Discipline should proceed on an expedited basis to consider what amendments, if any, should be made to the ABA Model Code of Judicial Conduct or to the ABA Model Rules of Professional Conduct to provide necessary additional guidance to the states on disclosure requirements and standards for judicial disqualification.

The committees have released their second draft of the proposed rule change, which omits several restrictions proposed in the first draft.  In response, Cindy Gray and the American Judicature Society proposed a stronger and more comprehensive rule in several respects.  That rule can be found on pages 18-19 of this document, which also contains the other commentary on the second draft.  The committees have kindly decided to post another draft for comment before the proposed rule goes to the House of Delegates next year.

UPDATE: The third draft is available here.  Comments are due by February 22, 2013.

Posted in Canon 2, Judicial Campaigns, Judicial Disqualification & Recusal | 1 Comment »

New Scholarship: Benedetto Neitz on Socioeconomic Bias in the Judiciary

Posted by judicialethicsforum on Tuesday, September, 25, 2012

Prof. Michele Benedetto Neitz (Golden Gate) has posted this insightful essay on judges’ implicit socioeconomic bias.  One of the essay’s motivators was Chief Judge Kozinski’s recent dissent from a denial of rehearing, in which he in effect accused the panel of socioeconomic bias.   See United States v. Pineda-Moreno (implying that the panel drove BMWs and engaged in “unselfconscious cultural elitism”).  Prof. Benedetto Neitz’s work can be viewed here, and the abstract follows:

Judges hold a prestigious place in our judicial system, and they earn double the income of the  average American household. How does the privileged socioeconomic status of judges affect their decisions on the bench? This article examines the ethical implications of what Ninth Circuit Chief Judge Alex Kozinski recently called the “unselfconscious cultural elitism” of judges. This elitism can manifest as implicit socioeconomic bias.

Despite the attention paid to income inequality, implicit bias research and judicial bias, no other scholar to date  has fully examined the ramifications of implicit socioeconomic bias on the  bench. The article explains that socioeconomic bias may be more obscure than other forms of bias, but its impact on judicial decision-making processes can  create very real harm for disadvantaged populations. The article reviews social  science studies confirming that implicit bias can be prevalent even in people who profess to hold no explicit prejudices. Thus, even those judges who believe their wealthy backgrounds play no role in their judicial deliberations may be influenced by implicit socioeconomic bias. The article verifies the existence of implicit socioeconomic bias on the part of judges through examination of recent  Fourth Amendment and child custody cases. These cases reveal that judges can and do favor wealthy litigants over those living in poverty, with significant negative consequences for low-income people.

The article contends that the ABA Model Code of Judicial Conduct (the “Code”), the document designed to regulate the behavior of judges, fails to effectively eliminate implicit socioeconomic bias. The article recommends innovative revisions designed to strengthen the Code’s prohibition against bias, and suggests improvements to judicial training materials in this context. These changes will serve to increase judicial awareness of the potential for implicit socioeconomic bias in their judicial decisions, and will bring this issue to the forefront of the judicial agenda.

Michele Benedetto Neitz, Socioeconomic Bias in the Judiciary, Cleveland St. L. Rev. (forthcoming 2013).

Posted in Judicial Ethics Generally | Leave a Comment »

Chief Judges and Ex Parte Contacts with Law Enforcement

Posted by judicialethicsforum on Tuesday, September, 25, 2012

Many readers are likely familiar with the Shalom Rubashkin case, which is now the subject of a short documentary.  The case involves many fascinating and frightening details, but of particular relevance are the ex parte contacts: the chief judge met for months with law enforcement planning the raid of Rubashkin’s business.  The judge did not disclose the extent of those planning sessions to the defendant or defense counsel; the contacts were instead revealed through a later public records request.   Ethics Experts Steve Gillers and Mark Harrison submitted affidavits indicating that both the prosecutors and the judge misstepped ethically.  The Supreme Court will soon consider whether to grant cert (it should), in a petition filed by Paul Clement.  The new documentary follows:

Additionally, some recent press about the film and the case can be viewed here.

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

Judicial Selection Updates

Posted by judicialethicsforum on Friday, May, 11, 2012

The great Malia Reddick, now the Director of the Quality Judges Initiative at the IAALS at Denver University, pulls together an interesting running collection of judicial selection news across the states.   Topics include merit selection bills, retention election battles, campaign spending, and many more. 

For the collection, click here.  To sign up for email updates, click here (and choose Selection Snapshots Newsletter). 

Posted in Judicial Selection | 1 Comment »

Leib et al. on Judges as Fiduciaries

Posted by judicialethicsforum on Friday, May, 11, 2012

Here is a very interesting new piece on judicial theory from Leib (Fordham) and coauthors.  The abstract follows:

For centuries, legal theorists and political philosophers have unsuccessfully sought a unified theory of judging able to account for the diverse, and oftentimes conflicting, responsibilities judges possess. How do we reconcile the call of judicial independence — a function of a judge’s obligation to uphold the rule of law — with that of judicial responsiveness — the obligation that, as a branch of government in a democratic polity, judges must ensure that the law not derogate too far from the will of the people? This paper reveals how the law governing fiduciary relationships sheds new light on this age-old quandary, and therefore, on the very nature of the judicial office itself. In so doing, the paper first explores the routinely overlooked, yet deeply embedded historical provenance of our judges-as-fiduciaries framework in American political thought and in the framing of the U.S. Constitution. It then explains why a fiduciary theory of judging offers important insight into what it means to be a judge in a democracy, while providing practical guidance in resolving a range of controversial and hotly contested legal issues surrounding judicial performance, such as judicial ethics at the Supreme Court, campaign contributions in state judicial elections, and the role of public opinion in constitutional interpretation.

For the full article, click here; Leib et al., A Fiduciary Theory of Judging, 101 Cal. L. Rev. (forthcoming 2013). 

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Swisher on Recusal and the Supreme Court’s Carrigan Decision

Posted by judicialethicsforum on Friday, May, 11, 2012

Prof. Swisher (Phoenix) has posted this essay about Carrigan, recusal, and related constitutional theory.  Here is the abstract:

Something good and something bad happened recently in government and judicial ethics; no one has truly noticed yet for some reason. The Supreme Court all but banned First Amendment analysis as applied to recusal laws, both legislative and judicial. That, actually, is the good thing, or so I argue. The bad thing is that the Court, in doing so, used a geriatric approach to constitutional theory. The approach is unduly reverent of anything “old;” and old is not limited to the practices of the Founding Fathers, but also includes “traditional” practices within some undefined range. But what is old is not necessarily wise, and a theory to the contrary leads to degenerative results in general and in ethics in particular, or so I argue further. I conclude with a return to the positive, hoping that the Court’s path may have inadvertently sparked a viable conceptual foundation for judicial recusal law and practice, which of course, have received much general press and scholarly attention of late.

For the full essay, click here; Keith Swisher, Recusal, Government Ethics, and Superannuated Constitutional Theory, 72 Md. L. Rev. (forthcoming Dec. 2012). 

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

Geyh on Judicial Impartiality

Posted by judicialethicsforum on Friday, May, 11, 2012

The judicial ethics force known as Prof. Geyh (Indiana-Bloomington) has posted this interesting research on the differing uses of judicial impartiality.  Here is the abstract:

Scholars have traditionally analyzed judicial impartiality piecemeal, in disconnected debates on discrete topics. As a consequence, current understandings of judicial impartiality are balkanized and muddled. This article seeks to reconceptualize judicial impartiality comprehensively, across contexts. In an era when “we are all legal realists now,” perfect impartiality — the complete absence of bias or prejudice — is at most an ideal, with “impartial enough” becoming, of necessity, the realistic goal. Understanding when imperfectly impartial is nonetheless impartial enough is aided by conceptualizing judicial impartiality in three distinct dimensions: A procedural dimension in which impartiality affords parties a fair hearing; a political dimension in which impartiality promotes public confidence in the courts; and an ethical dimension in which impartiality is a standard of good conduct core to a judge’s self-definition. The seeming contradictions that cut across contexts in which judicial impartiality problems arise, can for the most part be explained with reference to the dimensions those problems inhabit and the constraints under which regulation in those dimensions are subject. Thus, being impartial enough to assure parties a fair hearing in the procedural dimension may or may not be impartial enough to satisfy the public in the political dimension, which may or may not be impartial enough to ensure that judges are behaving honorably in the ethical dimension. Analyzing partiality problems through the lens of the dimensions they occupy not only resolves many of the imponderables that have long plagued the subject, but also reveals a distinct trend, in which impartiality is being transformed from a value traditionally regulated largely by judges and the legal establishment in the procedural and ethical dimensions, to one that is increasingly the province of the political dimension, where it is regulated by the public and its elected representatives. By situating impartiality at the crossroads of judicial procedure, ethics and politics, this article offers a new perspective, not just on judicial impartiality, but also on the role of the American judiciary in the administration of justice and the political process.

For the full article, click here.

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The ABA Considers New Ethics Rules for Judicial Campaign Contributions

Posted by kswisher on Sunday, January, 15, 2012

Following the ABA’s Resolution 107 (re: judicial disqualification and campaign contributions), the ABA’s Ethics and Discipline Committees have released for comment a series of ethics amendments that would add greater transparency to judicial campaign contributions and other campaign support.  A new Model Rule of Professional Conduct would guarantee that lawyers and law firms disclose their combined contributions to either an administrative court agency or the elected judge herself.  (Although the details need some ironing, this is a good idea; read why here.)  Furthermore, an amendment to the Model Code of Judicial Conduct would clarify when campaign contributions and other support (e.g., endorsements or campaign services) should result in the judge’s disclosure and recusal. 

The Committees will hear testimony at the ABA’s meeting next month in New Orleans.  To read the proposed amendments in full, click here.

Posted in Canon 2, Canon 4, Judicial Campaigns, Judicial Disqualification & Recusal | Leave a Comment »

The Chief Justice Ushers in the New Year with Superior Cheer

Posted by kswisher on Sunday, January, 15, 2012

Although admittedly old news by now, Chief Justice Roberts used his annual report to defend his Court’s indefensible lack of a judicial ethics code.  His defenses playfully distill into these three: (1) the other justices and I are good people so we do not need binding rules; (2) we and our court are special; and (3) ethics codes cannot guarantee ethical behavior (only the good people mentioned in (1) can do that).  The principle of “a government of law and not of [wo/]men” was reversed. 

To read the report, which is only twelve pages, click here.  Interestingly, the report begins and ends with the well-known tale of Judge Landis, without discussing the various conflicts and appearances in that tale; it almost makes one wonder whether the Chief Justice would like to take on a second job as “Commissioner of Baseball.” 

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

Bigger Judges Attacking Littler Judges

Posted by kswisher on Sunday, January, 15, 2012

We rarely see the use of one very scary weapon to keep a trial judge in line — indirect criminal contempt.  The Supreme Court of the United States Virgin Islands, however, recently used it.  After a trial judge refused to follow the supreme court’s mandate, criticized the accompanying opinion, and recused himself from the case, the supreme court ordered a show cause hearing.  Even though the special master who then presided over that hearing recommended that the trial judge be acquitted on all counts, the supreme court — i.e., the same court that was repeatedly criticized by the trial judge in his allegedly offensive recusal order — disagreed, found him in contempt, and set a sentencing date.  Although the trial judge’s recusal order did contain overly critical language, the supreme court’s acts are questionable as a matter of due process, cf. Mayberry v. Pennsylvania, 400 U. S. 455, 465-66 (1971); In re Murchison, 349 U.S. 133, 137 (1955), and dangerous to decisional judicial independence (insofar as much of the supreme court’s decision is based on the language in the trial judge’s published order; contempt decisions involving only the act of failing to follow a superior court’s clear order are obviously less problematic).  Perhaps the justices should have recused themselves, or at a minimum, given the judge one warning.   

Hopefully, this weapon will continue to be a rarity.  For the supreme court’s opinion, click here; and for the trial court’s order that offended the supreme court justices enough to impose a criminal conviction on the trial judge, click here

Posted in Canon 1, Canon 2, Canon 3, Judicial Disqualification & Recusal | Leave a Comment »

Membership, Discrimination, and Diversity

Posted by kswisher on Monday, December, 5, 2011

Canon 2C prohibits judges from “hold[ing] membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.”  Six months ago, we wrote about the sharply divided decision of the Sixth Circuit Judicial Council, which had concluded that Chief Bankruptcy Judge George Paine did not commit misconduct by remaining a member of an exclusively white-male country club.  The Judicial Conference of the United States has now officially disagreed.  In particular, its Committee on Judicial Conduct and Disability reviewed the decision and “easily” determined that the judge’s country club “invidiously discriminates against women and African Americans for purposes of Canon 2C and, consequently, that Judge Paine’s membership in the organization runs afoul of that Canon.”

The opinion is worth a close read for many reasons, only two of which follow.  (It is interesting, for example, that the Committee twice criticizes the Sixth Circuit for failing to investigate fully the matter and thus basing its decision on incomplete information; the Committee then does nothing further and bases its decision on the same information.  But let’s leave that problem for another day and focus on the content of this important opinion.)  First, the opinion is worth reading for the footnotes.  As is often the case, textual footnotes are among the most thought-provoking (or sometimes mind-numbing) part of opinions.  On the point that the Sixth Circuit’s investigation was inadequate, for example, the Committee expressed regret that the Sixth Circuit “appeared to resolve ambiguities in the record against the complainant.”  The Committee’s point is a good one, but is it clear that ambiguities (which invariably exist and persist) should be resolved in favor of complainants?  Perhaps the answer to that question should vary with the Canon at issue.  For Canon 2C, for instance, the respondent judge has voluntarily chosen to join or remain in the allegedly discriminatory organization, the judge will presumably have the best access to the organization’s membership rosters and policies, and the Canon is concerned in part with appearances.  In those circumstances, then, perhaps it might be permissible to shift the burden to the judge to prove that the organization does not discriminate — and perhaps that the organization also does not reasonably appear to discriminate. 

Canon 2C’s official commentary, on which the Committee later relied and built, does contain a form of burden-shifting when a judge joins or remains in a non-diverse organization, if “reasonable persons with knowledge of all the relevant circumstances would expect the membership would be diverse in the absence of invidious discrimination.”  “Relevant factors” in that regard “include the size and nature of the organization and the diversity of persons in the locale who might reasonably be considered potential members.”  Here is the Committee’s application: “Nashville, Tennessee, is one of the major cosmopolitan cities of the Southern United States. In particular, it boasts a 27% African American population. Its female population is just over 50%. Although few organizations perfectly mirror the population trends of their surrounding locales, a member of the public would reasonably expect to see at least some women and African Americans among Belle Meade’s Resident Membership barring (1) invidious discrimination or (2) something unique about the Club — ‘such as that the organization is dedicated to the preservation of religious, ethnic or cultural values of legitimate common interest to its members,’ [Canon 2C Commentary] — that would suggest otherwise. There is, however, nothing about Belle Meade’s stated aims or activities that provides any such justification for the total absence of any female or African American Resident Members. . . .  Naturally, there is no shortage of women or — as Judge Paine proclaimed in his 1990 letter to the Club’s Board — African Americans fitting that description.”  Thus, absent someone (presumably Judge Paine) coming forward with proof to the contrary (which is obviously unlikely in this case because Judge Paine believed that the club’s policies were indeed problematic), the judge’s membership may be determined to be misconduct.

Later in the footnotes, the Committee also conceded a bombshell: “To our knowledge, Canon 2C has never before been enforced.”  To place that statement in its context, Canon 2C, in its current form, has been on the books for twenty years.  Now, such shocking statements permit one’s optimistic or pessimistic nature to come out: judicial ethics regulation has finally matured to the point of enforcing a critical rule (and hopefully others like it) designed to ensure an actually and apparently impartial judiciary; or judicial ethics regulation has failed for twenty years to enforce such a critical rule.  Indeed, on the pessimistic side of the ledger, it is noteworthy that — despite finding a violation of Canon 2C — the Committee failed to impose any discipline:  because Judge Paine has expressed an intention to retire soon, and “because this decision represents the first enforcement of Canon 2C, there is no cause at this point for us to take disciplinary action.”  (Indeed, the Committee went further, proclaiming that the judge will retire with his “reputation . . . intact.”)  I have noticed this phenomenon several times in discipline decisions involving both lawyers and judges, although most of the cases are older ones.  The idea seems sound in a common-law based sanction regime: we should apply the (new) rule only retroactively because, in part, respondents necessarily could not have had notice of the rule in advance to guide their conduct.  The idea seems significantly less sound in a code-based sanction regime (i.e., the one that we have had for a long time): Canon 2C has always been publicly available and has always prohibited this behavior by its terms.  Why, then, do we give the first respondent a free pass?  We can come up with a few reasons, but because the Committee offered none (save the impending retirement), we have no one with which to argue.   

Yet another footnote is interesting and particularly so for sex-segregated organizations.  Judge Paine’s club (Belle Meade) did have a “lady membership,” which was priced less (but included no voting rights).  The Committee noted that “insofar as Lady Membership is preferable to other forms of membership, the exclusion of men from that category arguably constitutes another form of gender discrimination under the Code.”

Second, the opinion is worth reading because it offered some guidance to judges considering joining an organization: “Any judge considering membership in an organization should take steps to ensure that such membership would not appear improper. Naturally, those steps will differ to some degree depending on the particular circumstances. But we expect them to include, in all cases, a survey of the group’s membership, constitution, and bylaws. If ‘reasonable persons with knowledge of all the relevant circumstances would expect that the membership would be diverse in the absence of invidious discrimination,’ but the membership nevertheless is not diverse, the judge should err on the side of caution and decline membership.”  The Committee also offered a fuller vision of the two-year remediation exception (i.e., that a judge has up to two years to fix a discriminatory organization to which s/he already belongs): “The two-year qualification must be read in light of Canon 2C’s safeguarding of the appearance of propriety. Thus, we believe that this provision is available only if a judge determines that diversification efforts by the judge could reasonably succeed. In those circumstances, he or she may continue to hold membership in diligent pursuit of those efforts for a reasonable period of time not to exceed two years.”

The full opinion can be read here.

Posted in Canon 2, Judicial Ethics Generally | 1 Comment »

New Scholarship: Bam on Judicial Recusal Regulation

Posted by kswisher on Sunday, December, 4, 2011

Dmitry Bam (Maine) has just published a provocative article on judicial recusal.  Prof. Bam claims persuasively that we in the field have been ineffectively emphasizing the substantive recusal standards and the actual recusal results in specific cases.  As he explains, “[f]ocusing on the final recusal decision, and considering appearances only at the time of that decision, places too much emphasis on an aspect of recusal that may not be so important, at least when it comes to public confidence in the impartiality and fairness of American courts.” 

He instead recommends that we shift our emphasis in two steps: “The first part requires that attention shift away from the outcome-based recusal jurisprudence that focuses on the substantive recusal standard and the actual recusal decision. The second requires that attention shift toward the rules, regulations, and procedures that precede the recusal decision: namely, (1) ex ante regulation of judicial conduct and judicial selection that creates the appearance of bias in the first place, and (2) new recusal procedures to govern the processes by which judges make recusal decisions.  The recommended shift of attention to ex ante regulation of judicial conduct and appearance based recusal procedures will promote the appearance of judicial impartiality.”

As Prof. Bam himself notes, “[i]t may seem odd at first glance that in this Article about recusal, the key jurisprudential change that I recommend is not actually a change to recusal rules at all, but rather a new approach to regulating judges and aspiring judges.”  But his aim is well-intended and one we should keep in mind in reform: “I hope to show that to maximize the appearance of impartiality, the time to think about recusal is before the appearance of bias arises in the first place.”

Dmitry Bam, Making Appearances Matter: Recusal and the Appearance of Bias, 2011 BYU L. Rev. 943.

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

New Drug Court Study and the Effectiveness of Ethics

Posted by kswisher on Sunday, August, 7, 2011

An ambitious study of drug courts was recently completed.  Funded by the National Institute of Justice, several collaborating organizations analyzed more than twenty drug courts over a five-year period.  Not surprisingly, the study contains many interesting observations, but what is particularly noteworthy is the correlation between judicial ethics and the effectiveness of those drug courts.  That is, almost all of the following findings would have been required or (at a minimum) encouraged as a matter of judicial ethics:

Role of the Judge: The primary mechanism by which drug courts reduce substance use and crime is through the judge. Drug court offenders believe that their judge treated them more fairly than the comparison group, including demonstrating greater respect and interest in them as individuals and greater opportunities to express their own voice during the proceedings. Furthermore, when offenders have more positive attitudes toward the judge, they have better outcomes. This was true across all offender subgroups when examining demographics, drug use history, criminality, and mental health. A separate analysis drawing upon the results of structured courtroom observations found, similarly, that drug courts whose judge was rated by members of the research team as exhibiting a more positive judicial demeanor (e.g., respectful, fair, attentive, enthusiastic, consistent/predictable, caring, and knowledgeable) produced better outcomes than other drug courts. Both analyses reaffirmed the central role of the judge.

Judges may well have performed these duties as a matter of principle, but it is doubly rewarding to see the principles leading to good results.  In light of the above conclusions, the study recommends these four points for drug court judges:

  • Hold frequent judicial status hearings; in light of previous research on this topic, consider increasing the frequency of status hearings for “high risk” participants in particular.
  • If the jurisdiction allows it, choose drug court judges carefully. Drug courts will be best served if administrators intentionally assign judges to the drug court who are committed to the model and interested in serving in this role.
  • Monitor “client satisfaction” with the judge.
  • Train judges on best practices regarding judicial demeanor and regarding how to communicate effectively with program participants.

The study can be found here.

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

New Scholarship: Rotunda on White, Caperton, and Citizens United

Posted by kswisher on Sunday, August, 7, 2011

Professor Ron Rotunda’s most recent article, Constitutionalizing Judicial Ethics: Judicial Elections after Republican Party of Minnesota v. White, Caperton, and Citizens United, can be found here, and the abstract follows:

Recent times have witnessed strong lobbying efforts to move states away from electing judges to appointing them. Opponents of judicial elections repeatedly argue that the general public does not want judges who are bought by contributors. Of course, voters do not want those judges, yet the electorate repeatedly rejects efforts to move away from an elected judiciary.

When voters do choose judges, the conventional wisdom assures us that the results will be less partisan if the judges run in nonpartisan elections – where candidates run but do not disclose their political affiliation. However, empirical evidence does not support this frequent claim. Studies repeatedly show that judges elected in partisan elections are substantially more likely to be independent than judges selected in nonpartisan elections.

People who bemoan judicial elections often attack two U.S. Supreme Court decisions that appear to politicize the judiciary. One is Republican Party v. White (2002), which recognized the free speech rights of judicial candidates. They similarly criticize Citizens United v. Federal Election Commission (2010) as a pro-business decision that recognizes first amendment rights of corporations or individuals to spend money to engage in their political speech favoring their candidates. Yet, White simply evens the playing field by overturning restrictions that were really a form of incumbent-protection legislation. So too, the controversy surrounding Citizens United is misplaced. It does not favor business at the expense of unions. Instead it gives all entities, including unions and individuals, free speech rights that the government cannot restrict, which is why the ACLU supported the position of the petitioner and opposed the Federal Election Commission’s regulation. Still others view Caperton v. A.T. Massey Coal Company, Inc. (2009) as a case that will force judges to disqualify themselves if a party is related to an independent group that had supported the judicial candidate. It is too soon to judge the effect of Caperton, but there are plenty of indications in the five-person majority that the case has little growth.

It i[s] inevitable that money will flow into political campaigns: indeed, economic studies wonder why the major players do not invest more in these campaigns, given that so much money rides on the outcome. As long as politicians and judges decide billion dollar issues, there will be multi-million dollar campaigns. Fortunately, the empirical evidence to support the assertion that those who pays the money gets the judge they wants is decidedly mixed.

Ronald D. Rotunda, Constitutionalizing Judicial Ethics: Judicial Elections After Republican Party of Minnesota v. White, Caperton, and Citizens United, 64 Ark. L. Rev. 1 (2011).

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

New Scholarship: Janoski-Haehlen on Social Media Use and the Courts

Posted by judicialethicsforum on Sunday, August, 7, 2011

Emily M. Janoski-Haehlen recently posted a draft of The Courts Are All a‘Twitter’: The Implications of Social Media Use in the Courts.  Her draft can be found here, and a general abstract follows:

Tweet, poke, post, friend, like, blog, link, comment, and share: the opportunities to communicate electronically using social media tools seem never ending. Facebook, Twitter, YouTube, MySpace, and LinkedIn are just a few of the social media sites that allow people to communicate and “connect” with others across the world in seconds. E-mail and sending text messages are two other ways to communicate electronically, but neither e-mails nor text messages can keep up with the speed, accessibility, and popularity of social media. Social media is entrenched in our lives as evidenced by the fact that adult profiles on online social media sites are up from only 8% in 2005 to 47% in 2010. The legal profession has also jumped aboard the social media bandwagon with 40% of judges reporting they are on social media sites and 56% of attorneys reported having a presence on social media sites. Whichever “social networking” or communication method is chosen by an individual, the technology has made that communication instantaneous. Unfortunately, social media communication is also dangerous to the integrity of the courts.

Emily M. Janoski-Haehlen, The Courts Are All a‘Twitter’: The Implications of Social Media Use in the Courts, 46 Val. U. L. Rev. (forthcoming 2011).

Posted in Judicial Ethics Generally | Leave a Comment »

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.

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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).

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