The Judicial Ethics Forum (JEF)

An Academic Discussion of Judicial Ethics, Discipline & Disqualification

New Scholarship: Geyh Summarizes Federal Disqualification Law

Posted by judicialethicsforum on Sunday, May, 1, 2011

The Federal Judicial Center has released the Second Edition of Judicial Disqualification: An Analysis of Federal Law.  This free monograph was put together by Professor Charlie Geyh, whose name alone almost guarantees quality work.  [The treatise is a revised and expanded edition of Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144, published in 2002 (also by the Federal Judicial Center).]  Here is the Table of Contents for reference:

I.    History of Disqualification

II.   Disqualification Under 28 U.S.C. § 455

    A.    Overview

    B.    Grounds for disqualification

    C.    Disqualification procedure

III.  Disqualification Under 28 U.S.C. § 144

    A.    Overview

    B.    Grounds For disqualification

    C.    Disqualification Procedures

IV.  Disqualification Under 28 U.S.C. § 47

V.   Disqualification on Appeal

    A.    Routes of appellate review

    B.    Standards of review

    C.    Issues on appeal

    D.    Disqualification under 28 U.S.C. § 2106

Appendix: Code of Conduct for the United States Judges, Canons 3C and 3D

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Justice Kagan Receives the Latest Call for Recusal from Health Care Reform

Posted by judicialethicsforum on Sunday, May, 1, 2011

Supreme Court Justice Elena Kagan is the latest Justice to draw attention on whether she should recuse herself from ruling on the recent health care legislation.  The attention on Kagan follows repeated requests for Justice Thomas to recuse himself from the case, as well as the recent law professors’ letter to Congress and the proposed bill to impose recusal rules on the Supreme Court (Supreme Court Transparency and Disclosure Act).

Kagan drew attention after the Department of Justice released internal emails between DOJ officials discussing possible defenses to the Affordable Care Act.  The now Acting Solicitor General, Neal Katyal, forwarded an email regarding a white house meeting on the topic to then Solicitor General, Elena Kagan. 

Katyal’s email:

“This is the first I’ve heard of this.  I think you should go, no?  I will, regardless, but feel like this is litigation of singular importance.” 

Kagan’s reply email:

“What’s your phone number?” 

Various websites have been speculating whether she actually discussed the health care legislation and did not want to create a written record. 

The Atlantic’s editorial can be read here.

The National Review’s article can be read here.

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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). 

Posted in Canon 1, Canon 2, Canon 3, Judicial Disqualification & Recusal | Leave a 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).

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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.

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2010 state judicial discipline

Posted by graycynthia on Monday, January, 24, 2011

In 2010, as a result of state judicial discipline proceedings, seven judges or former judges were removed from office. In addition, 18 judges resigned or retired in lieu of discipline, pursuant to agreements with judicial conduct commissions that were made public, and agreed not to serve in judicial office again. One former judge was barred from serving in judicial office in the state again.

100 additional judges (or former judges in approximately six cases) received other public sanctions in 2010. (Two judges are counted twice because they were disciplined twice). In approximately half of those cases, the discipline was imposed pursuant to the consent of the judge.

Seventeen judge were suspended without pay, ranging from five days to one year, two of which were stayed in whole or in part with conditions. Nine of those suspensions included a censure, reprimand, fine, or probation. In addition, 17 judges were publicly censured; one of the censures was “severe,” one censured former judge also agreed not to serve again, one censure was based on the judge’s agreement to resign, and one censure also barred a former judge from serving in judicial office again.

Conduct commissions publicly reprimanded 42 judges (one reprimand also included a $5,000 fine, and one included a $6,000 fine), publicly admonished 19 judges, and publicly warned one judge. Three former judges were sanctioned in attorney discipline proceedings for conduct while they were judges. One judge was ordered to pay a $2,400 civil penalty.

Those figures do not include pending recommendations or decisions that were pending on appeal at the end of 2010, two of which have been decided in 2011.

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Judicial Discipline Case of the Week: Judge gets no “professional courtesy” for DUI

Posted by judicialethicsforum on Sunday, January, 9, 2011

The well-regarded New York State Commission on Judicial Conduct recommended censure for family court Judge Gerard Maney after the judge performed an illegal u-turn to avoid a sobriety checkpoint and repeatedly informed the officers of his judicial position.  The Judge requested that the officers give him a “professional courtesy” as a result of his judgeship.  The Commission found this conduct to be in violation of the New York Rules Governing Judicial Conduct §100.2(C), which states that a “judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.”  (The Commission also found the judge to have violated Rules 100.1, 100.2(A), 100.4(A)(2), and 100.4(A)(3).)  Despite the judge’s twenty-year-long-incident-free record, the Commission determined that a censure was appropriate.   

In addition to the “professional courtesy” bit, the case is interesting in two further ways.  First, three members concurred in the result, but wrote separately to express remorse about the Commission’s decision to draw negative inferences from the judge’s decision not to testify at the hearing.  That is indeed a controversial inference, but the New York Court of Appeals has blessed it.  See, e.g., In re Reedy, 475 N.E.2d 1262 (N.Y. 1985).  The second interesting feature of the case is the point of the two-member dissent.  As the dissent noted, the Commission can decide either to (as here) censure a judge or remove a judge (suspension is not an option).  All members seemed to agree that a censure was too lenient, but the majority apparently believed that the next step up (removal) was too harsh.  For middle-ground conduct, then, the majority assumed that the Commission should round down (to censure), while the dissent argued that the Commission should round up (to removal). 

The full opinion can be read here.

Posted in Canon 2, Canon 3 | Leave a Comment »

Judicial Disqualification Based on Commitments and Campaign Contributions

Posted by graycynthia on Thursday, January, 6, 2011

The American Judicature Society Center for Judicial Ethics has started to keep track on its web-site of states’ adoption of rules requiring disqualification based on commitments & campaign contributions. The document, which will be up-dated when there are new developments, is at http://www.ajs.org/ethics/eth_disqualification.asp.

For example, the document notes that the Oklahoma Supreme Court recently adopted a new code of judicial conduct that included a rule requiring disqualification when:

The judge knows or learns by means of a timely motion that a party, a party’s lawyer, or the law firm of a party’s lawyer has within the previous four (4) years made aggregate contributions to the judge’s campaign in an amount that a reasonable person would believe could affect the fairness of the judge’s consideration of a case involving the party, the party’s lawyer or the law firm of the party’s lawyer. The judge should consider what the public perception would be as to such contributions affecting the judge’s ability to be fair to the parties. Contributions within the limits allowed by the Oklahoma Ethics Commission will not normally require disqualification unless other factors are present.

The document complements the similar reports the Center up-dates on case law since Republican Party of Minnesota v. White (www.ajs.org/ethics/pdfs/CaselawafterWhite.pdf) and state-by-state developments since White (www.ajs.org/ethics/pdfs/DevelopmentsafterWhite.pdf).

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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

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)

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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

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.

Posted in Judicial Disqualification & Recusal | 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 »

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 »

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.

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