2021 Kansas Law Review Symposium

Impeachment By Any Other Name

Professor Ross Davies
Antonin Scalia Law School, George Mason University

This paper is a short tour of some ways powerful people get rid of judges who they either (a) do not like, or (b) would at least prefer to replace with someone else. It is focused in two ways. First, it will focus on the removal of judges from the bench, not on the removal of judges from particular cases (in other words, termination of service, not disqualification from a task), because the focus here is institutional—on the relationship between the judge and the office they hold, not the judge and their relationship to a particular litigant or dispute. Second, it will focus on judges on the U.S. Supreme Court, not on judges generally, because the focus here is on prompts, not empirics—on highlighting methods of manipulation of the bench, not on complete inventories of the uses of those methods. I will suggest that those methods fall into three categories—incentives, coercions, and subversions—and that while the most common forms of the first two methods are generally unobjectionable, the third is so objectionable that it probably ought be abandoned and avoided.

The Appearance of Appearances

Professor Michael Ariens
St. Mary’s University School of Law

Beginning at the turn of the twentieth century, lawyers and judges called for the latter to avoid the “appearance of bias,” or “appearance of impropriety.” The later phrasing was adopted in the American Bar Association’s 1924 Canons of Judicial Ethics, particularly Canon 4. The Canons of Judicial Ethics were drafted largely by the ABA committee’s reporter, Charles A. Boston. Those Canons were adopted only after an alteration that ignored the appearance of impropriety standard. Overall, the Canons were premised on the twofold ideal that a judge was to act with integrity and honor, and to avoid even the “appearance of impropriety.” The appearance of impropriety standard was initially a subjective standard applied by a judge whose impartiality was questioned by counsel. Beginning with the 1972 Code of Judicial Conduct, appearance of impropriety has not only remained in the ABA’s subsequent Codes of Judicial Conduct, but has become a standard used to discipline judges. During the ABA’s last reformation of the Code, concluded in 2008, drafters and commenters were divided regarding the role, if any, of an appearance of impropriety standard in twenty-first century judicial ethics. The ABA eventually sided with those urging its retention, especially the Conference of Chief Justices. That standard has been extensively used since its continued inclusion in the Code. The goal of this paper is to investigate the origins of the “appearance of impropriety” standard, its modest development, and its vigorous use in the past thirty years, despite its serious limitations.

Taking Courthouse Discrimination Seriously: The Role of Ethical Leadership by Judges

Professor Susan Saab Fortney
Texas A&M University School of Law

Sexual misconduct allegations against Alex Kozinski, a once powerful judge in the U.S. Court of Appeals for the 9th Circuit, spotlighted concerns related to sexual harassment in the judiciary. Following news reports related to the alleged misconduct, Chief Justice John G. Roberts, Jr. charged a working group with examining safeguards to deal with inappropriate conduct in the judicial workplace. Based on recommendations made in the Report of the Federal Judiciary Workplace Conduct Working Group, the Judicial Conference approved a number of reforms and improvements related to workplace conduct in the federal judiciary. The reforms included revising the Code of Conduct for U.S. Judges. As amended, the Code of Judicial Conduct for U.S. Judges now clearly states that judges should neither engage in, nor tolerate, workplace conduct that is reasonably interpreted as harassment, abusive behavior, or retaliation for reporting such conduct. Under this provision, judges should not turn a blind eye to others’ misconduct, but should accept their responsibilities as ethical leaders committed to a diverse, inclusive, and respectful workplace where harassment is not tolerated. Drawing on the Report of the Federal Judiciary Workplace Conduct Working Group, related studies, and a survey of state codes, this article examines areas where state Codes of Judicial Conduct and related procedural rules should be revised to address more effectively the serious problems of harassment and other workplace misconduct at the courthouse.

Justice and the Rules: The Moral Obligations of Magistracy Versus Canons, Codes, and Rules of Judicial Conduct

Professor Stephen Sheppard
St. Mary’s University School of Law

Where is Justice in the justice system? Can Justice be rescued from its reputation as vague, controversial, and a hopeless ideal that masks an infinite array of conflicting political goals? Can Justice ever again be a real measure of the rulings handed down from America's bench? Or, is there no recourse beyond the technicalities of the canons and rules of judicial oversight. Stephen Sheppard, Dean Emeritus of St. Mary's Law School, argues for a healthy respect for the legal and the moral obligations that, in fact, bind every jurist, no matter how mean or how mighty. His argument revives a usable, stable concept of justice that can be understood and accepted by people of different conditions and needs, allowing stable assessment of judgments affecting litigants and their successors long into the future. That concept of Justice threads through the whole cloth of judicial regulation but goes further. Justice assays judges' actions and decisions of law, providing a core of assessment that cannot be delegated to assessors or committees but inevitably rests with official and popular cultures, not only of the moment but also of the future. There we find the justice or injustice of the law.

Regulating the Private Lives of Judges: Where is the Line?

Christopher Joseph
Partner, Joseph, Hollander & Craft, LLC

Joseph’s symposium presentation will focus on judges’ out-of-courtroom conduct and what should and should not be restricted by the Code of Judicial Conduct. He will discuss whether the Code’s language permits regulation of morality and, if so, how can such regulation be implemented practically, fairly, and uniformly.

The Ethics of Decision Making: Result Oriented Judging and the Oven of Akhnai

Honorable Justice Caleb Stegall
Kansas Supreme Court

The most common rationale for the existence of judicial codes of conduct is that they are necessary—in the words of the Preamble to the Kansas Code of Judicial Conduct—to “maintain and enhance confidence in the legal system” and to “ensure the greatest possible public confidence” in our judges’ “independence, impartiality, integrity, and competence.” But a realistic assessment of the public’s confidence in judges and their judgments suggests that the quality of judicial decision making itself is the primary factor affecting public confidence in courts and the rule of law. And yet, judicial decision making is routinely excluded from the field of judicial ethics. This lecture will begin with the claim that judicial decision making is itself fraught with ethical complexities; will describe and explain the widespread refusal to acknowledge those complexities; and will suggest ways we might begin to understand and articulate the ethical challenge and dilemma inherent in the act of judging.