Occassional reflections of a moderate (hey at least I think I am)

Wednesday, October 19, 2005

Judge violates Code of Judicial Ethics to support Miers

Admittedly, this is kind of a minor point but it has gotten under my skin a bit and wanted to get my thoughts down.

By now we are all aware of the other shoe dropping on the Miers nomination. As John Fund reported, two judges participated in a conference call. According to Fund, Dobson introduced them by saying "Karl Rove suggested that we talk with these gentlemen because they can confirm specific reasons why Harriet Miers might be a better candidate than some of us think." In addition, it is fairly clear that Kinkeade has been active in supporting the Miers nomination.

Judge Hecht's participation does not bother me that much. He is a state court Judge and, given the laws as they are, he has to be a political animal. Judge Kinkeade on the other hand should not be involved in the process the way he has been. I am not saying this from sort of partisan perspective. Rather I am saying it from the perspective of the governing ethical code.

The ethical conduct of federal judges is governed by the Code of Conduct for United States Judges. When a Judge is commenting on the nomination of a judge or justice there are competing canons in the Code. Canon 4 (A JUDGE MAY ENGAGE IN EXTRA-JUDICIAL ACTIVITIES TO IMPROVE THE LAW, THE LEGAL SYSTEM, AND THE ADMINISTRATION OF JUSTICE) permits judges to participate in the betterment of the legal system. On the other hand Canon 7 (A JUDGE SHOULD REFRAIN FROM POLITICAL ACTIVITY) admonishes federal judges from participating in the political process. Further, Canon 2 (A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL ACTIVITIES) admonishes Judges to not be character witnesses if it can be avoided. Just reading these canons, one could throw their hands up and say it is questionable whether a sitting judge should voluntarily add his voice in support of a nominee.

Luckily, the Committee on Codes of Conduct is authorized by the Judicial Conference of the United States to publish formal advisory opinions on issues frequently raised or issues of broad application. They have actually issued an advisory opinion on this matter. In that opinion, it tells federal judges that they may participate in the nominating process by cooperating with "appointing authorities" which means "the President and Senators and their selection committees or commissions." In addition to constraining who the Judge can talk to, the advisory opinion goes on to admonish judges that "the judge should not lend his or her name to any publicity campaign for any candidate."

I know this is peripheral to the main issues in the Miers nomination but it does confirm the current culture that "ethics are optional."


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