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Excerpted From: Joshua E. Kastenberg, Evaluating Judicial Standards of Conduct in the Current Political and Social Climate: The Need to Strengthen Impropriety Standards and Removal Remedies to Include Procedural Justice and Community Harm, 82 Albany Law Review 1495 (2018-2019) (453 Footnotes) (Full Document)


JoshuaEKastenbergIn 1964, Richard Hofstadter published "The Paranoid Style in American Politics" in Harper's Magazine in which he characterized the United States' political life as being immune from the more egregious effects of class conflict. Hofstadter was one of the twentieth century's foremost American History scholars, and he argued that the fact that the United States did not turn to fascism or communism during the twentieth century's crisis times stood as a testament to the nation's institutional strengths. Yet, he also noted that politics served "as an arena for uncommonly angry minds" and in turn, this enabled a "small minority" to possess ample political leverage so that their "animosities and passions" were incorporated by one of the nation's two major political parties. Using 1964 presidential contender, Senator Barry Goldwater's supporters as an example, Hofstadter contended that one of the central characteristics of the "small minorit[ies]" was their insistence that the nation's elites had persecuted them, and whether or not the majority understood this to be true, they too were the victims of the persecution.Although Hofstadter noted that there were "angry" historical movements across the political spectrum, the modern right wing's adherents--as he termed them in 1964--believed themselves dispossessed, and their country having been taken from them. Similar themes were expressed by President Donald Trump in the 2016 presidential campaign.

Hofstadter wrote in broad themes and he focused on the nation's broad political system rather than a component part of it, such as the population's relationship to a branch of government. His observations and conclusions remain relevant today, though it is worthwhile to analyze the effect and relationship of a "small minority" to a particular branch of government. In this regard, there is question as to whether the fifty state judicial branches are internally policed to minimize the possibility that modern "right wing" populism will undermine judicial independence and impartiality. Although political scientists will define modern populism differently, for the purpose of this Article, the United States' current experience with populism includes sweeping resentments against minority groups (and in particular immigrants from non-European regions), political elites, and attacks on long-standing political institutions. And, as a caveat to this study, similar concerns would be raised if a modern "left-leaning" populism had succeeded in national politics.

The problem of public trust in a fair judiciary is not new. In 1970, Chief Justice Warren Burger observed, "A sense of confidence in the courts is essential to maintain the fabric of an ordered liberty for a free people." While this statement may be nothing more than aspirational, Burger warned that when "people who have long been exploited ... come to believe that courts cannot vindicate their legal rights from fraud," an "incalculable damage [is done] to society." It could be added that "exploitation" includes influencing people to deflect attention from the actual sources of exploitation to imaginary or tangential sources, which also may do damage to judicial institutions.

A number of state supreme courts have held that judicial service requires a judge not only to be "learned in the law," but also to adjudicate cases or appeals in a fair and impartial manner. When a judge takes an oath of office, he or she accepts a mandate of performing judicial duties in a conscientious and impartial manner. The impartiality requirement is both ancient and embedded in American jurisprudence. The judicial duty of impartiality also extends to both actual impartiality and the appearance of impartiality. While the oath of judicial office may appear to be a simple ministerial act, the current political and cultural climate of "right-wing" populism has brought forth the possibility that judicial standards of conduct as embodied in oaths are, in some instances, not enforceable to a degree that will preserve the impartiality mandate.

It should not be doubted that the public has an interest in an impartial judiciary. In 2015, the Supreme Court determined, in Williams-Yulee v. Florida Bar that a state can "prohibit judicial candidates from personally soliciting campaign funds." The compelling interest for Florida was the preservation of public confidence in an impartial judiciary. Florida's Supreme Court justices and appellate court judges are appointed by a system of "merit selection," but its trial judges are elected by popular vote. Florida's statute preventing trial judges from soliciting campaign donations was challenged as a First Amendment violation. The majority of the Court noted that while it is difficult to give "precise definition" to public confidence in the judiciary, public confidence is, nonetheless, a compelling interest. This decision, however, relates to the financial conduct of judicial candidates. Moreover, there is a tension between Williams-Yulee and the Court's 2002 decision, Republican Party of Minnesota v. White. In White, the Court determined that judicial campaign speech is constitutionally protected unless there is a compelling state interest to curtail such speech. White arose from a challenge to Minnesota's rule prohibiting judicial candidates from announcing positions on matters likely to come before the courts. Both Williams-Yulee and White, however, narrowly focus on limitations placed on election campaigns and not on disqualification challenges arising from personal conduct once a judge has assumed her or his judicial position.

This Article focuses on judicial conduct, rather than the narrower category of campaign speech, though campaign speech may, in many instances, be thought of as a subset of conduct. It also examines impropriety standards in a proposed holistic model. This model should not be interpreted to limit judicial independence in decision making, but it proposes that state disciplinary commissions and state supreme courts incorporate procedural justice and community harm concepts into their investigative and determination processes. Part I of this Article presents an examination of the current common frameworks shared by the states for addressing judicial conduct appealing to popular social and political influences. Included in this section is an analysis of the interrelationship between implicit bias and impropriety, as well as on community harm and procedural justice.

Part II provides both a historical and contemporary analysis of "populism," including the effect of populism on the nation's judiciary. This section provides an argument for why historic models of populism provide only minor guidance for addressing the current wave of populism's impact on the courts. Namely, not only are there fundamental ideological differences between the prior populist movements, ascertaining lessons from the past can easily devolve into presentism, or put another way, the use of the past to ratify the present. In essence, this section concludes with the admonition that the phrase "we have experienced this before," is not a solution to judicial bias.

Part III then examines the effect of judicial behavior and populism in three areas of concern. These are: racially derogatory conduct by judges; demeaning conduct in regard to gender such as sexual harassment; and, discrimination against gays, lesbians, and transgendered persons (hereafter LGBT). The Article concludes with the argument that because judicial behavior, whether on the bench or off, which is derogatory to persons on the basis of race, national origin, gender, LGBT status, or other protected classes creates a community harm which makes fair and impartial trials less likely, removal sanctions should be more readily accepted.

Concededly, there are crucial considerations in advancing an argument that the removal or long-term suspension of a judge from hearing all, or even a class of cases. Judicial removal and suspension are drastic acts that can have the effect of impeachment without a formal legislative process. That is, the removal or long-term suspension of a judge negates the intent of the political branches of government when judges are appointed, or the will of a state's voters in terms of elected judges. Secondly, freedom of speech is a principle right of all citizens, and there must be a compelling reason to place limits on this right. Finally, some state constitutions permit permanent removal, and others only enable temporary suspension. This makes the achievement of a national standard difficult. Although this Article is premised on the theory that judicial impartiality is a compelling reason, it must be acknowledged that a majority of the Court in White, did not agree that the reason was compelling enough to curtail election speech. Finally, there is an underlying principle of judicial ethics that judges have a duty to adjudicate cases.

Although this Article concentrates on state judiciaries, it is important to understand that the federal judiciary is no less impacted by political and social currents. And, it should also be noted that the federal judiciary may serve as a barometer of judicial conduct to the state judiciaries. At present, there are 673 district court judges and 179 courts of appeals judges as authorized by federal law. As of June 1, 2017, there were fifty-nine women serving as federal court of appeals judges. Additionally, out of the 160 active appellate judges, twenty-one were African-American, fourteen were Hispanic, and five were Asian-American."As of June 1, 2017, a total of 194 women were serving as U.S. district court judges" (representing approximately one-third of the judiciary). There were, in addition, eighty-one African-American judges, fifty-eight Hispanic judges, sixteen Asian judges, and one Native American judge. After President Trump's first ten months in office, when combining the fourteen confirmations with the fifty-eight pending nominations, his judicial selections were ninety-one percent Caucasian, and eighty-one percent male. Given modern American populism's attack on elites, coupled with a promise to return to a majoritarian power, President Trump's public criticism of a United States District Court Judge named Gonzalo Curiel, who presided over a lawsuit where he was a defendant had a conflict of interest as a result the judge's Hispanic heritage, is lamentably unsurprising.

[. . .]

In 2015, a study found that prosecutors in Caddo Parrish, Louisiana exercised peremptory challenges against African-American jurors at three times the rate that non-black jurors were struck. Despite the Court's admonition in Batson, it is clear that there is a discriminatory practice against African-American jurors in one part of Louisiana. While it is difficult to draw a direct line from Judge Timothy Ellender's conduct to that of prosecutors who routinely exercise peremptory challenges against minorities, it cannot be missed that Ellender was not removed from the bench after disparaging African-Americans. Had the state judicial disciplinary agency or the Louisiana Supreme Court applied a community harm standard to Ellender and removed him, it at least would have sent a signal to the prosecutors that racism against minorities has no place in the charging of crimes or the prosecution's adjudicatory functions. Removal may have also brought greater confidence to Louisiana's population that the judiciary would follow its own goal of colorblind impartiality.

It is true that a judge possess the same free speech rights as does the general citizenry, but various rights, in particular, freedom of speech, may be curtailed by the fundamental demands of the twin duties of impartiality and independence. It is true that the Supreme Court has held that a state or the federal government enjoys greater latitude to regulate speech when it acts in its capacity as an employer. However, the Court has also distinguished the judiciary from normal employment. Although well before the 2016 election judges had been discovered to have engaged in sexual harassment, articulated racially disparaging comments, or evidenced hostility to gays, lesbians, and transgendered (LGBT) persons, there has been a rise in the political targeting of minorities (including certain religious minorities) and LGBT persons since that time.

A trial litigant, whether in a civil or criminal trial, is entitled to a jury that is not predisposed to a result based on racial, religious, or gender bias. The same rule holds true for judges. A litigant is entitled to challenge a juror for cause as well as a judge. Some jurisdictions extend the "appearance of impropriety" standard to recusal. However, no rule of judicial ethics exists which takes into account how a judge's public or known private conduct might affect the right to a fair trial by strengthening a community's implicit biases. One means to curtail this possibility is to make the removal of judges who engage in sexist, racist, or other bigoted acts more likely. Some states, such as Oregon, New York, and Washington have taken a step in this direction. But, most of the state supreme courts have not. And, while it appears that there is less tolerance for sexism in the courts, and a few states have removed judicial officers who refused to perform same-sex marriages, there remains inequities in judicial discipline and tolerance for derogatory conduct toward minority groups. In the end, assessing judicial misconduct not only against the current standards of judicial canons of ethics, but also by adding considerations of community harm will enable a state judicial system to better protect the integrity of its judicial system by instilling long-term public confidence and wider participation in it.

Professor Joshua Kastenberg teaches criminal law and criminal procedure at the University of New Mexico, School of Law.

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