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The
Appearance of Propriety
The Judicial
Canons Have Got it Wrong
The Real Ethical Issues Facing Judges Are Hidden from View
By Alex Kozinski
Legal Affairs
January/February 2005 issue
THE CANONS OF JUDICIAL
ETHICS REMIND ME OF THE OLD JOKE about the drunk who's crawling
around on all fours under a lamppost one night. A policeman comes
along and asks him his business and the drunk explains that he's
looking for a lost quarter. The policeman offers to help and pretty
soon they're both crawling around looking for the coin. After about
a half hour of this, the policeman gets fed up and asks, "Are you
sure you lost the quarter around here?" "Oh, no," answers the drunk.
"I dropped it over in the alley, but it's too dark to look there."
So, too, it is with the canons of ethics. The canons focus on the
tensions and potential conflicts that are most easily detected by an
outside observer. For example, pretty much everyone agrees that a
judge should not sit in judgment in a case on appeal if he
participated in the decision below. Similarly, everyone agrees that
a judge should not sit in a case where he participated as a party or
a lawyer. Those are just two of the most obvious examples of rules
and precedents saying that a judge may not take part in a case where
doing so would create the appearance of impropriety.
I'm not a fan of this approach, nor do I believe that it's necessary
or inevitable. In the early years of the Republic, the rules of
disqualification were based on the common law notion that an
integral part of the judge's job was to set aside whatever personal
interests and biases he might have and decide cases impartially on
the merits. If a judge felt he could not set aside personal bias in
a particular case, he would recuse himself. But the primary
obligation was to summon his internal fortitude and decide the case
without regard for personal considerations. Thus, it was not
uncommon for a judge to hear an appeal of his own decision, as
Supreme Court justices did when the full court reviewed cases that
they had each decided while serving as judges in the lower courts, a
practice called riding circuit. Nor was it taboo for a judge to hear
cases involving events in which he had participated, as Chief
Justice John Marshall did in Marbury v. Madison. That
landmark case arose because Marshall, acting in his capacity as
secretary of state覧a job he held at the same time he was chief
justice覧had failed to deliver William Marbury's commission as a
justice of the peace before President Adams's term in office
expired. Yet no one thought there was a problem at the time. The
modern approach, with its focus on the appearance of impropriety,
condemns both of these practices while overlooking the most common
and important ethical issues that judges face.
WHAT ARE THESE ISSUES? The first one I want to examine has to do
with work allocation, that is, the amount of time and effort judges
spend on cases, particularly small cases. Judicial caseloads have
increased tremendously over the last few decades, and they continue
to do so. When I graduated from law school in 1975, I clerked for a
judge on the Ninth Circuit; at that time each judge disposed on the
merits of approximately 210 cases a year. In 2002, the number stood
at 492 per active judge, and the Ninth Circuit was far from the
busiest court of appeals in the country. That dubious honor went to
the Eleventh Circuit, which decided a mind-numbing 843 cases per
judge.
Human nature being what it is, there is a strong tendency to devote
a disproportionate amount of judicial time to big cases and give
short shrift to small ones. There's actually a lot to be said for
this. Preparing a precedential opinion requires a significant amount
of time because the opinion not only decides the dispute between the
parties but also sets the course of the law for innumerable cases to
come.
Yet the small cases also have a legitimate claim to a fair share of
judicial time and attention. Once in a while, it turns out that what
looked like an easy case is actually quite difficult, because of a
small fact buried in the record or a footnote of a recent opinion.
After more than two decades of judging I have found no way to
separate the sheep from the goats, except by taking a close look at
each case. But how close a look any judge actually takes is strictly
a matter of conscience. It's one of the embedded ethical issues that
no one ever talks about.
A closely related issue is the pressure to give away essential
pieces of your job. Ninth Circuit judges generally have four law
clerks, and the circuit shares approximately 70 staff attorneys, who
process roughly 40 percent of the cases in which we issue a merits
ruling. When I say process, I mean that they read the briefs, review
the record, research the law, and prepare a proposed disposition,
which they then present to a panel of three judges during a practice
we call "oral screening"覧oral, because the judges don't see the
briefs in advance, and because they generally rely on the staff
attorney's oral description of the case in deciding whether to sign
on to the proposed disposition. After you decide a few dozen such
cases on a screening calendar, your eyes glaze over, your mind
wanders, and the urge to say O.K. to whatever is put in front of you
becomes almost irresistible.
A similar temptation exists in the bigger cases. Writing opinions is
a difficult, time-consuming, exacting task. It is a reality of
current judicial life that few judges draft their own opinions from
scratch. Generally, the judge will give instructions about how a
case is to be decided and what points the opinion should make, but
the initial drafting is almost always left to a clerk. If the judge
chooses merely to fiddle a bit with an opinion drafted by his clerk,
nobody outside his chambers will know. And we do occasionally get
opinions circulated that read like they were written by someone a
year out of law school with no adult supervision. The only guarantee
one can have that judges are not rubber-stamping their law clerks'
work product is each judge's sense of personal responsibility.
Important cases create their own issues. Would anyone today remember
John Sirica, Harold Greene, and Thomas Penfield Jackson if they had
held, respectively, that President Nixon did not need to turn over
the White House tapes, that AT&T did not need to be broken up, and
that Microsoft was not a monopoly? I'm not saying that Judges Sirica,
Greene, and Jackson made their decisions for improper reasons. I'm
saying only that judges are well aware that certain outcomes are far
more likely than others to gain them personal fame and prestige.
Sirica, who before Watergate led an undistinguished judicial career
and was known around the D.C. district courthouse as "Maximum John"
for his harsh sentencing practices, became Time's Man of the
Year in 1973. That's a lot of temptation right there, yet it is
seldom recognized as creating an ethical dilemma.
And how does a judge reconcile his career ambitions with principled
application of the law and sensitivity to individual justice? Let's
say you're a district judge hoping for promotion. In criminal cases,
do you consider that the attorney general, who has considerable say
in the appointment and elevation of federal judges, has adopted a
policy of keeping track of district judges who sentence defendants
below the range suggested by the sentencing guidelines? How do you
keep it out of your mind? Every magistrate judge is a
district judge in waiting, every district judge is a circuit judge
in waiting, every circuit judge is an associate justice in waiting,
and every associate justice is a chief justice in waiting. Every
state judge wants to be re-elected and promoted. The canons of
judicial ethics don't begin to address the pervasive temptation to
decide cases so as to please those in the political process who have
the power to appoint, retain, and promote judges.
Relationships on the bench also present challenges and temptations.
Do you have an ethical obligation to dissent because you think it's
the right thing to do, even if you know it won't change anybody's
mind and will probably upset your colleagues? Is it okay to swap
votes with another judge覧say, to vote in favor of going en banc in
a case he's interested in, in exchange for having him vote with you
in a case you're interested in?
And how about the ethical conundrum presented by the cases where a
dispassionate application of the law to the facts leads to a result
that the judge doesn't like? I want to put aside the close case
where the law is murky enough so the judge might find a principled
way to reach a result he considers just. I also want to put aside
the controversial case where the morally offended judge applies the
law correctly but then makes noise to spark political efforts to
change the law. Rather, I pose the more mundane覧but far more
common覧case where the law is fair, no one in particular has an axe
to grind, but the judge believes that the result dictated by
precedent is unjust.
Most people would say that a judge in that situation must put aside
his personal feelings and decide the case in accordance with the
law. But most would also agree that the judge faces a conflict of
obligations, namely the obligation to apply the law impartially and
the obligation to do justice. We generally reconcile these
obligations by saying that justice is served when a judge applies
the law impartially, regardless of his personal views.
But what if a judge comes across a case where a straightforward
application of the law leads not merely to a result he doesn't like,
but to what he believes is a shocking injustice? May a judge bend
the rule of law to avoid a truly monstrous result? Does he have an
ethical obligation to do so?
In theory, it's easy enough to say that a judge may never bend the
rules to avoid a particular result, no matter how bad. But consider
this example: You are reviewing a criminal appeal where a young man
has been convicted of murder and sentenced to life without the
possibility of parole. You examine the record and find that the
evidence linking the defendant to the crime is quite flimsy. The
only solid proof supporting the conviction is the testimony of an
inmate who shared a cell with the defendant while he was awaiting
trial, and who swears that the defendant confessed to the murder (a
confession the defendant denies making). You read the snitch's
testimony closely and find it transparently unconvincing.
Applying the rules of appellate review in an objective manner, you
would have to affirm the conviction. After all, the jury is the
trier of fact, and it was entitled to return a guilty verdict based
on the jailhouse confession alone. Yet what if you believe, to a
moral certainty, that the confession is a fabrication and the
defendant didn't do it? Must you affirm the conviction and let a
young man you believe is innocent spend the next 60 years locked up
like an animal in a 7-foot by 10-foot cage?
Or, if you're not moved by this example, consider the case where the
defendant is convicted of multiple brutal murders of small
children覧crimes of which he is doubtless guilty. And let's say
you're convinced that, if the defendant is released, he will surely
do it again. As it happens, however, this defendant has a slam-dunk
argument that the prosecution's entire case against him is the fruit
of a technical procedural violation覧a search based on an improper
warrant, for instance. Do you have a categorical obligation to set
the defendant free and thereby condemn more children to death by
torture, or may you put justice above the law and find a way to keep
the killer behind bars?
ETHICAL QUESTIONS LIKE THESE POP UP EVERY DAY in the course of
judging but don't show up anywhere in the canons. How serious are
these issues? Let me explain it this way: I file a financial
disclosure report every year, giving the world a list of my assets,
just so litigating parties can confirm that I did not覧God
forbid覧sit in a case involving a corporation whose stock I hold. I
find this requirement a nuisance and a bit dangerous and intrusive,
because it makes public information about me and my family that I
would prefer to keep private. But the report is required by law and
is considered an important safeguard of judicial integrity.
Yet I can't imagine that I could possibly be tempted to change my
vote in a case because I own stock in one of the parties. If money
mattered to me, I would be in private practice and, in a month or a
week覧maybe an hour覧I would make much more than my one hundred
shares of AT&T could conceivably change in value based on my vote in
a case. The idea that I would give up my honest judgment in a case
for a few dollars is beyond silly覧it's ludicrous and insulting. So
many of the things contained within the canons, the ones most talked
about, make no difference at all in practice.
But the internal pressures I describe above are ones I confront
every day. Giving short shrift to small cases, signing off on the
work of staff and calling it my own, bending the law to reach a
result I like, and the dozens of other ways in which I feel the urge
to do something unethical, yet wholly undetectable by anyone other
than me覧all these temptations I must fight off many times every
day.
My problem with the appearance-of-impropriety standard is that it
promotes the wrong idea覧that in order to keep judges from acting
unethically, ethical rules must prevent judges from appearing
to act unethically. It also seems to suggest the converse: that if
judges appear to be acting ethically, they probably are. Nothing
could be further from the truth. A judge can appear to act ethically
and still betray his responsibility in essential respects and in
ways no one will ever know about. Increasing the number of rules and
prohibitions覧like making sure judges don't attend privately
financed seminars at swank resorts with plush golf courses覧will do
absolutely nothing to increase judicial responsibility where it
counts.
I know there's a growing tendency to distrust judges覧to craft more
elaborate ethical rules and restrictions, to expand the scope of
what is encompassed within the appearance of impropriety standard,
to adopt better methods of intruding into judges' private lives覧all
in a misguided effort to promote ethical judicial behavior. But the
hard truth is that few of those things really matter. Judicial
ethics, where it counts, is often hidden from view, and no rule can
possibly ensure ethical judicial conduct. Ultimately, there is no
choice but to trust the judges. To my mind, we'd all be better off
in a world with fewer rules and a more clear-cut understanding that
impartiality and diligence are obligations that permeate every
aspect of judicial life覧obligations that each judge has the
unflagging responsibility to police for himself.
Alex Kozinski is a judge on the U.S. Court of Appeals for the
Ninth Circuit. This article was adapted from "The Real Issues
of Judicial Ethics," which appeared as part of a symposium in the
summer 2004 issue of the Hofstra Law Review.
http://legalaffairs.org/issues/January-February-2005/argument_kozinski_janfeb05.html
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