Monday, March 12, 2012

A Way Forward on Judicial Ethics -

The Times has endorsed an elegant procedure suggested by Stephen Gillers to resolve the dispute about recusal standards for Supreme Court Justices: an internal review by the whole court, rather than the `each a judge in her own cause' standard that has long reigned.  I am a signer of the letter to which the Times refers because it just bugs me to hear the Chief Justice say in his 2011 annual report  that though not bound by the Code of Judicial Conduct, the justices"do in fact consult the Code" , as they do to many other authorities. 
Why not declare yourselves bound by the Code - even though the last word will inevitably be within the Court - except for the rare process of impeachment for high crimes and misdemeanors?
Instead of embrace of the Code which governs all other federal judges we get pablum like this from the Chief Justice: "I have complete confidence in the capability of my colleagues to determine when recusal is warranted. They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process. I know that they each give careful consideration to any recusal questions that arise in the course of their judicial duties. We are all deeply committed to the common interest in preserving the Court’s vital role as an impartial tribunal governed by the rule of law."
It is not the "capability" of the justices that is at issue.  It is their conduct.    Though the Gillers proposal would be a step forward, it does not solve the guidance problem.  What we want to know is when is recusal warranted, and how do you decide?  I would support  embrace of the Code and establishment of an Advisory Committee on Judicial Conduct under the Judicial Conduct and Disability Act of 1980.   Similar to the New Jersey Supreme Court's Advisory Committee on Extra-Judicial Activities, a judge could inquire confidentially of the committee about whether a course of action is appropriate, whether it involves extra-judicial or reasons for recusal.  The Chief Justice or the Court might also make inquiry.  Such an advisory body would include former or retired judges and prominent practitioners.  

A Way Forward on Judicial Ethics - Editorial
"Last Tuesday, an alliance of government watchdog groups delivered 100,000 signatures to the Supreme Court along with a letter from hundreds of law professors calling on the justices to voluntarily adopt the code of conduct that applies to all other federal judges and to reform how they handle requests for recusals.
A federal appeals court ruling the next day on the case of a federal trial judge illustrates why recusal over a conflict of interest cannot be left solely to the judge involved and needs to be reviewed by other jurists. Yet the Supreme Court operates with no such mechanism, which is critical to preserving confidence in the court’s integrity"

'via Blog this'


  1. This proposal is worse than useless. Worse, because of the likelihood that it would result in watering down the recusal standards for all federal judges.

    Members of the Court, including the Chief, have already defended clear violations of sec. 455. This is understandable. The justices have to work closely together in a collegial atmosphere despite fundamental disagreements about jurisprudence and constitutional law. The bitter Jackson-Black feud is a good illustration of what can happen when one justice criticizes another’s ethics.

    In addition, members of the Court have expressed their dissatisfaction with the application to them of sec. 455.

    What would undoubtedly happen under the proposal is that the Chief and the other justices would validate every individual decision of a colleague, no matter how egregious, thereby establishing bad precedents for all federal judges.

    My guess, though, is that one or more members of the Court have already expressed approval of the proposal, or it would not have been put forward. See 30 Okla. City Univ. L. Rev. 513, 529-532 (2005).

    1. I took a look at your Oklahoma City piece. You are right about the group dynamics problem - which is why I suggest the Advisory Committee on Judicial Ethics modeled on New Jersey's experience. For Stephen Gillers compliance with his clients I have no solution. We saw a similar breezy dominus vobiscum from him in his affirmation of Kenneth Feinberg's independence in the BP cases. Fortunately the MDL Judge Carl Barbier ordered Feinberg to state plainly that he was an agent of BP, not an independent `fund' manager. - GWC