Appearance of Impropriety I: Federal Judge in a Whites Only Club? Ethical, As Long As He Doesn’t Like The Policy. Wait…WHAT?

Our Motto: "Trying to find a qualified black member for 110 years...and still looking!"

Is it an ethical violation for a Federal judge to belong to a whites-only country club?

Sure it is. Was that so hard?

Apparently for a judicial appeals panel in Tennessee, it is.

In May of 2008, an anonymous woman complained to the chief judge of the 6th Circuit Court of Appeals that Federal bankruptcy  Judge George Paine II’s  membership in the ritzy Belle Meade Country Club violated the judicial ethics code of conduct that decrees that judges “should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.”  This was a reasonable complaint to make, since the judicial codes for both Federal judges and Tennessee judges say that…

 CANON 2: A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL ACTIVITIES

2 C   A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.

The Belle Meade Country Club has not been able to find a qualified African-American to make a resident member, the only category allowed to vote or hold office, in 110 years…a record that includes rejecting an African-American candidate that Judge Paine himself sponsored and aggressively worked to have accepted. The club is a gathering place for the wealthy and powerful Nashville elite. Business deals get made there, contacts, political alliances, careers, fortunes. Excluding African-Americans for 110 years isn’t “invidious discrimination,” but just a coincidence, as the club claims? Who would believe such a thing?

Only judges. The Judicial Council, made up of circuit and district judges in the four-state 6th District, voted 10-8 last month to dismiss the complaint.  [WARNING! New York Times link!] The rationale, as articulated by Chief Judge Alice Batchelder, is that Paine’s unsuccessful campaign to diversify the club over-rides his membership in it.  “The record clearly supports (the) finding that the judge complained of engaged in long and sincere efforts to integrate the club in question. In the majority’s view, those efforts preclude a finding that he has engaged in misconduct,” she wrote.

What? WHAT? So as long as you complain about the racist policies of an organization you belong to, participate in, and lend your prestige to, there is nothing wrong with keeping your membership?  As long as you make an effort to change the minds of the racists you socialize with and associate yourself with, that means you can keep getting tee times with a free conscience? WHAT??

From the Judicial Codes of Conduct:

CANON 1: A JUDGE SHOULD UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY

An independent and honorable judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.

And…

Comment: Canon 2C. Membership of a judge in an organization that practices invidious discrimination gives rise to perceptions that the judge’s impartiality is impaired….an organization is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of race, religion, sex, or national origin persons who would otherwise be admitted to membership….public manifestation by a judge of the judge’s knowing approval of invidious discrimination on any basis gives the appearance of impropriety under Canon 2 and diminishes public confidence in the integrity and impartiality of the judiciary, in violation of Canon 2A… a judge’s membership in an organization that engages in any invidiously discriminatory membership practices prohibited by applicable law violates Canons 2 and 2A and gives the appearance of impropriety. In addition, it would be a violation of Canons 2 and 2A for a judge to arrange a meeting at a club that the judge knows practices invidious discrimination on the basis of race, sex, religion, or national origin in its membership or other policies, or for the judge to use such a club regularly. 

And..

When a judge determines that an organization to which the judge belongs engages in invidious discrimination that would preclude membership under Canon 2C or under Canons 2 and 2A, the judge is permitted, in lieu of resigning, to make immediate and continuous efforts to have the organization discontinue its invidiously discriminatory practices. If the organization fails to discontinue its invidiously discriminatory practices as promptly as possible (and in all events within two years of the judge’s first learning of the practices), the judge should resign immediately from the organization.

And the response of the Council to all this is, “Yes, but…”  Except there is no “but.”  A judge who belongs to a segregated club creates a legitimate suspicion that he is biased and incapable of independent and fair judgment when race is involved. Nothing in the codes, and nothing in the realm of common sense,  justifies ignoring the obvious appearance of impropriety and compromised fairness and integrity created by a judge’s membership in such a club because the judge tried to change the discriminatory policy. Whether or not he tried to change it, his continued membership strongly suggests that he values swimming pools, golf courses and dining privileges more than human dignity, fairness and equal rights.

As dissenting Council member Appellate Judge R. Guy Cole Jr. wrote,

“We federal judges must sometimes make sacrifices for the honor of the office we hold, and the judge’s membership in Belle Meade should have been one of them.”

Of course.

7 thoughts on “Appearance of Impropriety I: Federal Judge in a Whites Only Club? Ethical, As Long As He Doesn’t Like The Policy. Wait…WHAT?

  1. I find it surprising that no one has filed such a complaint against a judge who was a Freemason.

    I disagree with the ruling, although I do think the complaint could be dismissed for a similar reason: the very fact that African-Americans have been proposed for resident membership is an argument against the idea that the club’s membership decisions reflect invidious discrimination.

    • You think? In 110 years? Knowing what people naturally think when they see an all-white club? If a university was all white, but said that it regularly sough and considered black applicants, would anyone believe—SHOULD anyone believe—that discrimination wasn’t involved? I generally disagree with the presumption of bias based on statistics alone, but this res ipsa loquitur. The lack of A-A members itself works to discourage integration—the club needs to recruit blacks, and to recognize the need to do so. And we’re not talking affirmative action here—how many distinguished black professionals, entrepreneurs, elected officials. community leaders and rich people do you think there are in the Nashville area? 5000? 20,000? 100,000? How many have there been since 1901?

      Are there really no black Freemasons? I’ll have to look into that—good point.

      • It’s a tough question.

        The issue with Freemasonry concerns women. It’d be hard to argue that such “discrimination” is “invidious”, but I’m surprised it’s never even happened, given the prevalence of both fundamentalist Protestants, Freemasons and legal tomfoolery in the South.

        Now that you bring it up, though, you could have an outside shot at a complaint on that issue. Most black Freemasons are members of Prince Hall-affiliated lodges (though I’m sure some work within a Grand Lodge of Tennessee-affiliated lodge, as is the case here in Florida). The Grand Lodge of Tennessee is one of the few remaining American Grand Lodges (the ex-Confederacy less Texas plus West Virginia; regrettably, that does include Florida) that does not recognize its Prince Hall counterpart as legitimate Masonry.

  2. Jack,
    You may be interested in knowing as part of the trial investigation process of the club’s policies, which the majority of the Judicial Council voted to accept, it was determined that there was conflicting evidence about whether a woman could be a resident member. However, the report ultimately accepted the testimony of Paine and another member that women can fill those roles but have chosen not to because the “lady member” category is less expensive. It seems to me that in and of itself is discriminatory to have one category for “ladies” and another for women. It sounds like Belle Meade Country Club is your good old boys network hosting members who still live and think as though it is 1911 instead of 2011. From an ethical perspective, as you so rightly point out, there is a fairness issue that, for a judge, is crucial in giving the appearance of being unbiased. Truly ethical people hold themselves to a higher standard then what club rules may or may not permit. If I were a black man with a case in front of Judge Paine knowing what I now know, I would have to wonder whether I can receive a fair hearing, trial and ultimate legal decision. If we accept that this black man would have the right to feel that way because Judge Paine remains a member of a club that discriminates in practice, even if not according to the law, then we can also conclude that the honorable thing would have been for Judge Paine to quit as a member of the club. Judges must be above reproach in both personal and professional aspects of their lives.

    • I noted the controversy over women, and left it out because it didn’t change the equation, in my mind. Thanks for raising it hear, though…and I apologize for the draft junk at the end of the post that I neglected to delete. I agree with your assessment.

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