THE ARCHITECTURE OF JUDICIAL ETHICS.

• Author: Geyh, Charles Gardner

INTRODUCTION 2352 I. THE TRIPARTITE ARCHITECTURE OF JUDICIAL ETHICS 2357 A. Macroethics 2357 B. Microethics 2360 C. Relational Ethics 2365 1. Guarding Against Constitutional Overreach 2366 2. Encouraging Extrajudicial Engagement 2366 3. Promoting Operational Effectiveness 2367 4. Preserving Institutional Legitimacy 2367 II. SITUATING ETHICS CONTROVERSIES IN THE ETHICS ARCHITECTURE 2368 A. When Consensus Emerges on the Ethical Propriety of 2368 Controversial Conduct B. When Consensus Fractures on the Ethical Propriety of 2371 Controversial Conduct 1. Guarding Against Constitutional Overreach 2372 2. Encouraging Extrajudicial Engagement 2378 3. Promoting Operational Effectiveness 2380 4. Preserving Institutional Legitimacy 2384 III. THE LESSONS OF ETHICS CONTROVERSIES AND THE FUTURE OF REFORM 2385 A. The Role of the Code of Conduct in Judicial Discipline 2391 B. The Role of the Code of Conduct as an Aspirational Guide 2396 CONCLUSION 2399 INTRODUCTION

In 1999, Professor Stephen Burbank wrote an article entitled The Architecture of Judicial Independence A It is a foundational piece that gave structure to what was then an understudied field. At the heart of that article is a profound insight: stable and enduring judicial systems are the product of forces in constructive tension. Thus, in the context of judicial administration, Burbank conceptualized judicial independence with reference to judicial accountability, and characterized pressure points in the relationship between them as complementary, not contradictory; and in later work, he made a similar point about the interplay between the law and policy in judicial decisionmaking. I could pay homage to Steve in this symposium by praising his many contributions to our understanding of judicial administration and decisionmaking. But I did that recently in the online edition of this law review, (2) and I am concerned that if I gave his ego yet another pump, his head would pop and deflate when he cut himself shaving. Instead, my ambition for this Article is to honor Steve's scholarly legacy by emulating his approach to illuminate the architecture of an under-theorized subset of the judicial independence and accountability literature: judicial ethics.

As a field of study, judicial ethics is typically relegated to the role of introverted child in the professional responsibility family, where it is overshadowed by its outgoing, older sibling, legal ethics. The net effect is three-fold. First, professional responsibility scholars tend to focus their intellectual energy on legal ethics and the law of lawyering and show judicial ethics comparatively little love. Second, what attention judicial ethics does receive is circumscribed by the professional responsibility "bucket" in which it is placed, as a consequence of which judicial ethics tends to be conceptualized, taught, and tested as a body of rules of professional conduct. The net effect is that judicial ethics scholarship has generally fixated on this ethical dilemma or that in relation to applicable canons without attempting to theorize more broadly. Third, by confining judicial ethics to the professional responsibility bucket, its relevance to subjects in adjacent buckets is overlooked.

As a consequence of its diminished niche in a different subfield, judicial ethics has not featured prominently in discussions of judicial independence and accountability. The relationship between them, however, is close and clear. Codes of judicial conduct promote judicial independence as an instrumental good and exhort judges to avoid sources of influence on their decisionmaking that could compromise their independent judgment. Those same codes describe bad judicial conduct, which is the target of accountability mechanisms generally and disciplinary processes in particular. Accordingly, understanding how judicial ethics works is integral to understanding how judicial independence and accountability work.

Notwithstanding the dearth of scholarship on the role of judicial ethics in relation to independence and accountability, controversies arising out of efforts to hold judges accountable for alleged ethical lapses have arisen in federal and state systems throughout the twenty-first century. In the federal system:

* There has been a high-profile, intra-judicial squabble over whether it is unethical for federal judges to be members of the Federalist Society, the American Constitution Society, and the American Bar Association. (3)

* Members of Congress and others have called for the U.S. Supreme Court to adopt its own code of ethics, prompting the Chief Justice to demur, arguing that such a code is unnecessary and warning that the constitutionality of ethics-related legislation obliging the Supreme Court to comply with disqualification rules and periodic financial disclosure requirements remains untested. (4)

* Justice Ruth Bader Ginsburg was called to task for criticizing then presidential candidate Donald Trump, in violation of the Code of Conduct for U.S. Judges, which is applicable to federal judges in the lower courts. (5)

* Justices Antonin Scalia and Clarence Thomas were criticized in the news for being featured speakers at Federalist Society fundraising events, likewise in violation of the Code of Conduct for U.S. Judges. (6)

* The Judicial Conference of the United States revised its code of conduct (and disciplinary procedures) in response to widely publicized sexual harassment scandals. (7)

* The Chair of the House Judiciary Committee introduced legislation to establish an Inspector General in the federal judiciary to oversee the federal courts. This was done in response to perceived underenforcement of the Judicial Conduct and Disability Act, amid the Ninth Circuit's protracted investigation of District Judge Manuel Real for ethical lapses, including abuse of power and improper ex parte communications. (8)

* The media have reported on highly publicized cases in which Supreme Court Justices Scalia, Thomas, Kagan, and Ginsburg did not disqualify themselves, despite critics' exhortations that they do so--an issue with one foot firmly planted in judges' ethical obligation to disqualify themselves when their impartiality might reasonably be questioned. (9)

* Court critics in Congress and the media have questioned the ethics of federal judges attending expense-paid educational seminars at luxury resorts courtesy of corporate sponsors with litigation pending before the federal courts on issues relevant to the seminars. (10)

* After Supreme Court nominee Brett Kavanaugh was accused of sexual assault and lashed out against his accusers during his Senate confirmation proceedings, he became the subject of multiple disciplinary complaints, and over two thousand law professors signed a letter opposing his appointment on the ground that his outburst called his judicial temperament into question. (11)

In state systems:

* There has been a hard-fought dispute over whether judges should be subject to discipline for violating an ethical duty to avoid the "appearance of impropriety." (12)

* Judicial candidates have (with mixed success) filed suits in federal court, challenging the constitutionality of ethics rules that forbade them from announcing their views on disputed legal issues; making pledges, promises, or commitments in relation to cases that may come before them; making false or misleading campaign statements; directly soliciting campaign contributions; and engaging in other forms of political conduct. (13)

* The U.S. Supreme Court reversed two state supreme court rulings on due process grounds because justices on the state high courts of Pennsylvania and West Virginia declined to disqualify themselves despite probable bias. (14)

* A protracted ABA ethics initiative that sought to reform disqualification procedure and require judges to disqualify themselves from cases in which the campaign support they received called their impartiality into question collapsed in the face of opposition from the ABAs Judicial Division. (15)

These developments have generated scholarship analyzing isolated ethical problems with reference to rules and principles embedded in codes of judicial conduct, statutes, constitutions, advisory opinions, and judicial rulings. But there has been little effort to step back and think about these judicial ethics issues on a more conceptual plane, with reference to forces in constructive tension, in a manner akin to Burbank's seminal analysis of judicial independence and accountability. As a result, commonalities among seemingly unrelated ethics problems have gone largely unnoticed, which has obscured the path to common solutions.

In Part I of this Article, I conceptualize judicial ethics in a tripartite architecture, with macro, micro, and relational elements. Macroethics concern the core principles that define the essential attributes of a good judge. Microethics refer to the specific canons and rules that have emerged and evolved to delineate the more practical contours of ethical and unethical judicial conduct, guided by macroethics principles. Relational ethics refer to a judge's ethical responsibilities in relation to other values that constrain the application of micro and macroethics. Relational ethics thus represent the outer bounds of a judge's ethical obligations in relation to, and sometimes in tension with, other values. These other values include the right of judges to speak, associate, and conduct themselves without unduly vague or burdensome regulation; and the interests of judges collectively, as courts and judicial systems, to operate effectively and with a presumption of legitimacy.

To illustrate this tripartite relationship, impartiality is a macroethics value that underscores the importance of good judges being unbiased and open-minded. A code of conduct canon prohibiting judges and judicial candidates from announcing their views on disputed issues that they are likely to decide as judges...