judicial ethics

Breaking! The Supreme Court Finally Issues Its Own Code of Judicial Ethics

/ Jack Marshall / 8 Comments

This is a rarity: genuine breaking ethics news. The U.S. Supreme Court just released a SCOTUS code of conduct, signed by all nine justices. I have already read that the code “largely follows an existing code for other federal judges.” That code is here. I disagree. The new SCOTUS Code is significantly more detailed, with special emphasis on family conflicts (no doubt prompted by the criticism of Justice Thomas’s wife, a conservative activist.)  I find it fascinating, after decades of arguing that the general precepts of judicial ethics were to be presumed in the very core of our nation’s most powerful judges, when they finally codified their ethics, it yielded the most specific and extensive judicial ethics requirements in existence.

I want to flag two important features. First, the word used in all of the five Canons is “should,” not “shall.”  That makes these best practice guidelines, but not absolute requirements. Second, the code does not include any mechanism for enforcement, discipline, or public oversight. Presumably the Court is still  entirely self-policing.

Here is what was released today; I apologize for the funky formatting. WordPress made a lot of strange changes when I copied and pasted, and I had the patience to fix only the worst of them… Continue reading →

Ethics Dunce: North Carolina Supreme Court Justice Anita Earls [Photo Corrected]

/ Jack Marshall / 17 Comments

The North Carolina Code of Judicial Conduct differs little from the judicial codes of the other 50 states, the District of Columbia, and the federal judiciary. Among its edicts:

  • “A judge should …personally observe appropriate standards of conduct to ensure that the integrity and independence of the judiciary shall be preserved.” [Canon 1]
  • “A judge should respect and comply with the law and should conduct himself/herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” [Canon 2]
  • “A judge may speak, write, lecture, teach, participate in cultural or historical activities, or otherwise engage in activities concerning the economic, educational, legal, or governmental system, or the administration of justice….if in doing so the judge does not cast substantial doubt on the judge’s capacity to decide impartially any issue that may come before the judge…”[Canon 4]

Despite all of these strictures, Justice Earls gave an interview to Law360 in which she suggested that the justice system is racially biased, citing the lack of racially diverse clerks, and suggested that white judges and other court personnel discriminate against black and female lawyers. She also stated that her conservative colleagues on the North Carolina Supreme Court are more concerned with advancing the conservative legal movement than with their duty to improve the court system. She specifically singled out her own court’s Chief Judge, citing him as an example of “the general antipathy towards seeing that racial issues matter in our justice system.”

These comments to the media violated all of those ethics provisions above, and arguably some others. A lawyer violates North Carolina ethics rules by impugning the integrity of a judge (NCRPC 8.2), and for a state Supreme Court Justice to do this is infinitely more damaging to the public’s respect for and trust of the justice system. After that interview, the Court launched an official investigation to determine whether she had violated the Judicial Code and undermined the judicial system.

Good.

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Officials And Leaders Who Conservatives Consider Essential Bulwarks Of Constitutional Government Really Have To Stop Relying On “The King’s Pass”

/ Jack Marshall / 10 Comments

Take Clarence Thomas for example.

As with Donald Trump, who was the object of much rationalization here yesterday, Justice Thomas apparently is certain that conservative and Republican integrity don’t have the rigor to make him accountable for a truly staggering series of judicial ethics breaches. He is also apparently correct in this assumption.

Justice Thomas finally acknowledged publicly that he should have reported selling real estate at a suspicious profit to billionaire political donor Harlan Crow in 2014, a transaction disclosed by ProPublica earlier this year. The Crow company bought a string of properties for $133,363 from co-owners Thomas, his mother and the family of Thomas’ late brother, according to a state tax document and a deed. Conservative power-player Crow then owned the house where a Supreme Court Justice’s elderly mother was living—hey, no big deal!—and soon contractors began tens of thousands of dollars of improvements on the two-bedroom, one-bathroom home. Although a federal disclosure law requires SCOTUS Justices and other officials to disclose the details of most real estate sales over $1,000, Thomas never deigned to mention this convenient and inherently suspicious transaction. You know, that “appearance of impropriety” thingy?

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Unethical Headline Of The Year (So Far): Conservative Website “Hot Air”

/ Jack Marshall / 13 Comments

Ugh.

How disgraceful. Here is the headline: “Clarence Thomas must resign because he went on vacation or something.” Despicable.

Justice Thomas, the most extreme conservative jurist on the U.S. Supreme Court, already, in the assessment of Ethics Alarms, has been shown to have engaged in unethical judicial conduct by raising a flaming appearance of impropriety with his acceptance of lavish junkets from an activist conservative billionaire and his failure to report them. The verdict here in April was that Thomas is obligated to resign, and that is still the verdict. His inexcusable conduct not only undermines his own credibility but the credibility and legitimacy of the entire Supreme Court.

But now, there is evidence that Thomas’s conduct was even worse than what was reported last Spring. From Pro Publica:

A cadre of industry titans and ultrawealthy executives have treated him to far-flung vacations aboard their yachts, ushered him into the premium suites at sporting events and sent their private jets to fetch him — including, on more than one occasion, an entire 737. It’s a stream of luxury that is both more extensive and from a wider circle than has been previously understood. Like clockwork, Thomas’ leisure activities have been underwritten by benefactors who share the ideology that drives his jurisprudence. Their gifts include: At least 38 destination vacations, including a previously unreported voyage on a yacht around the Bahamas; 26 private jet flights, plus an additional eight by helicopter; a dozen VIP passes to professional and college sporting events, typically perched in the skybox; two stays at luxury resorts in Florida and Jamaica; and one standing invitation to an uber-exclusive golf club overlooking the Atlantic coast. While some of the hospitality, such as stays in personal homes, may not have required disclosure, Thomas appears to have violated the law by failing to disclose flights, yacht cruises and expensive sports tickets, according to ethics experts. Perhaps even more significant, the pattern exposes consistent violations of judicial norms, experts, including seven current and former federal judges appointed by both parties, told ProPublica. “In my career I don’t remember ever seeing this degree of largesse given to anybody,” said Jeremy Fogel, a former federal judge who served for years on the judicial committee that reviews judges’ financial disclosures. “I think it’s unprecedented.”

Jeez, I hope it’s unprecedented! The degree of arrogance and dunder-headedness that led Thomas to do this is astounding. He’s known he’s had a target on his back since he was nominated for SCOTUS; he knows, or should know, that he is going to be scrutinized for missteps like no other Justice in the Court’s history. For Thomas to accept such trips and luxuries from parties who stand to benefit from the results of the Court’s deliberations is as irresponsible for a controversial Supreme Court Justice as it would have been for Jackie Robinson to secretly run a numbers game while he was playing for the Dodgers.

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Back To The Justice Thomas Scandal: Do Conservatives Really Not Understand The Appearance of Impropriety Judicial Ethics Prohibition, Or Are They Just Choosing To Ignore It?

/ Jack Marshall / 8 Comments

Ugh.

From the Daily Caller:

Conservative legal scholars are calling attacks on Clarence Thomas for his alleged ethics violations hypocritical in light of Ketanji Brown Jackson’s financial disclosure as a nominee, which shows she omitted portions of her income on previous filings, including money from her husband’s consulting work.

These “conservative scholars” are partisan hacks.

Their argument is that because Jackson’s SCOTUS nominee disclosure papers filed in March 2022 “inadvertently omitted” income her spouse “periodically receives from consulting on medical malpractice cases” (which was disclosed on prior reports), there is a double standard applied to conservative justices. Utter garbage, and I suspect intentionally misleading. There would be no demands for Thomas’s resignation if all that was at issue was the failure to report some ambiguous gifts on his annual disclosure forms. SCOTUS justices have done this many times in the past: it is grounds for criticism and a necessary “Sorry, I won’t do that again” statement. The reason Thomas’s 20 years of unreported vacations with ultra-conservative billionaire real estate developer Harlan Crow is that it looks bad, to the public, to objective judicial ethicists, and to me.

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The Complete List Of Rationalizations To Excuse Justice Thomas’ Gross Betrayal Of Judicial Ethics, And Other Updates (Part I) [Revised and Expanded]

/ Jack Marshall / 28 Comments

Just in case you’re wondering, I stand by everything in my previous post about Justice Thomas’s unprecedented breach of judicial ethics and his obligations as a Supreme Court justice, except my belief that Thomas would resign, or be forced to. Not for the first time, I badly over-estimated the integrity of a public servant. Other points…

1. Above is Thomas’s statement this morning regarding the ProPublica report that he has been accepting lavish trips from conservative donor and billionaire Harlan Crow for decades. It is garbage, top to bottom:

  • The fact that the Thomases and the Crows are good friends or old friends is irrelevant, and is no defense.  Of course SCOTUS justices can have friends, and can socialize. However, many of the vacations the Crows took Clarence an Ginni on included other politically interested conservatives, who has access to Justice Thomas and an opportunity to pursue their interests with him as a captive audience. Moreover, one reason such situations suggest impropriety is the Cognitive Dissonance scale: gifts tend to raise the giver and what the giver is linked to on the scale of the receiver. This is why legislators and government employees are limited by laws in what kinds of gifts they receive. The legal ethics rules also caution against accepting expensive gifts from clients, because it might interfere with independent judgment, even though lawyers are supposed to already be on their clients’ sides.
  • “Family trips” is deceit. More than just the Crow family went on these trips. Thomas is obfuscating.
  • What “colleagues”? When was “early in his tenure”? Thomas joined the Court in 1991, well before the vacations with the Crows began. Are we supposed to believe he asked about gifts and junkets like these before they were offered? By colleagues, does he mean other justices? “I once asked somebody and they said it was okay” is a particularly unconvincing justification. 
  • Our first unethical rationalization, and it’s a lulu:#4 Marion Barry’s Misdirection, or “If it isn’t illegal, it’s ethical.” Thomas is saying that because no official standards prohibited what he did until recently, what he did was okay. Wrong! Rules, laws and standards don’t make unethical conduct wrong, ethical principles do. Thomas knew that the vacations violated well-accepted and near-universal principles of judicial ethics. He was and is a judge, and judges must avoid the appearance of impropriety and influence. For a Supreme Court justice to invoke the same corrupt logic as D.C.’s rogue mayor is disgusting and depressing.
  • It is false to say that the trips were not “reportable.” Of course they were reportable: Thomas deliberately chose not to report them.

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On Judge Kollar-Kotelly’s Procrustean Attempt To Make Abortion A Constitutional Right

/ Jack Marshall / 8 Comments

That’s Procrustes portrayed above, in both of his favored acts of mayhem. I checked: I’ve used the term “Procrustean” several times here, but never was kind enough to explain the term’s origins, which is what makes it cool.

Procrustes was the nastiest of the bad guys the mythological Greek hero Theseus encountered on his way to killing the Minotaur in Crete. Procrustes would invite a weary traveler to take refuge for the night, offering him sustenance and a bed—but the bed was a deadly trap. Procrustes guaranteed every guest would fit the bed neatly, but that was because it converted into a rack, stretching anyone who was too short. If a guest was too tall, Procrustes just hacked off enough inches from the feet up to ensure that the bed would fit him, too. Theseus killed the psycho, but the word procrustean eventually entered legal lexicon to describe an argument that illogically squeezed facts or omitted them to make a theory fit the law.

I thought of old Procrustes immediately when I read that Judge Colleen Kollar-Kotelly in the District Court for the District of Columbia suggested after a hearing that the Thirteenth Amendment might have created a right to abortions. Wait, you well might ask, “How could an amendment created specifically to make slavery illegal, passed right after the Civil War, be construed to enshrine abortion as a right?” The short answer is, “It can’t and doesn’t.” The stupid, intellectually dishonest answer, however, is the one that the previously responsible female judge has decided to promote.

When the amendment states, Continue reading →

No, Anti-Kavanaugh Obsessives, Attending A Holiday Party Does Not Constitute “An Appearance Of Impropriety” [Corrected]

/ Jack Marshall / 6 Comments

Ooooh, scary! Politico reported that Justice Brett Kavanaugh attended a private holiday party last week at the home of Matt Schlapp, chairman of the Conservative Political Action Coalition (CPAC). Attendees included Stephen Miller, whose group America First Legal Foundation, it reported, “has interests in cases now pending before the court.”

Bloomberg Law seems to think social engagements over the holidays aree suspicious actions triggering “the appearance of impropriety” prohibitions all judges are told to avoid. They are not. The problem is that now there is a glut of committed ideologues determined to intimidate, neutralize and delegitimatize the Supreme Court, and to those biased critics, virtually anything a conservative justice does appears improper. In Kavanaugh’s case, unsubstantiated juvenile conduct while in high school was cited as sufficiently improper to overshadow his impeccable record as an adult judge.

Attending a party with people who “live, eat, and breathe conservative political action” is either reflective of a level of insensitivity to that development or indifference to it, says Charles Geyh, an Indiana University Maurer School of law professor. “This is the worst possible time for this,” he said. “That development” is the Court being unjustly and disingenuously attacked for legitimate and legally justifiable decisions that the Left hates. The prohibition against “the appearance of impropriety” means conduct that could be reasonably and objectively seen as improper, not conduct that partisan fanatics find convenient to call improper. Professionals like lawyers, politicians and judges should be capable of interacting socially with those they may disagree with, and there should be no adverse inferences from accepting a private party invitation. As the late Justice Scalia insisted, even Supreme Court Justices are entitled to a social life. If the job requires living like a cloistered monk, no one will want the job.

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Now THAT’S An Incompetent Judge!

/ Jack Marshall / 14 Comments

Darrell Brooks, accused as the killer in the Waukesha Christmas Parade massacre (yes, he did it), has been defiant and combative throughout his trial, in which he is serving as his own defense attorney. This time, he slammed his fist on the table and stared menacingly at Judge Jennifer Dorow. As Count Floyd (Joe Flaherty), the cheesy host of Monster Chiller Horror Theater in a recurring SCTV skit used to say, “Ooooh! Scary!” So the judge fled the courtroom.

“I need to take a break,” Judge Dorow said. “This man right now is having a staredown with me. It’s very disrespectful, he pounded his fist, frankly, it makes me scared and we’re taking a break.”

It made her “scared’! As the judge, she has all of the power, and the criminal defendant has none. Judges have faced evil glares from maniacs, murderers, cannibals, rapists and the worst dregs of humanity for centuries, but I’ve never heard of one being so tender and faint-hearted that she couldn’t take the metaphorical heat and had to hide.

Dorow’s weenie act is a straight-up breach of the Wisconsin Code of Judicial Conduct. It says that “A judge should participate in establishing, maintaining and enforcing high standards of conduct and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved.” It commands that judges “shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” It requires judges to “maintain professional competence” and “require order and decorum in proceedings.”

What a disgrace. Running from the scary man making faces at her denigrates the court system, judges, and women in authority. It also may prejudice the trial and give Brooks a basis for an appeal. Judge Dorow has made it clear that she doesn’t have the fortitude to do her job in this trial, and should recuse herself. I would recommend that a judicial panel seriously consider whether she should remain a judge at all.

Clarence Thomas Gets A Rare “Double Dunce,” Ethical And Political

/ Jack Marshall / 7 Comments

I really don’t comprehend how this can happen with someone like Justice Clarence Thomas. Donald Trump, sure. But Thomas is smarter than this.

Between 2003 and 2007, Ginni Thomas, the Justice’s controversial wife and a hard-Right activist, earned $686,589 from the Heritage Foundation, according to a Common Cause review of the foundation’s IRS records. Yet Justice Thomas failed to note the income in his Supreme Court financial disclosure forms for those years. He checked a box labeled “none” where “spousal non-investment income” is supposed to be disclosed.

Federal judges are bound by law to disclose the source of spousal income, meaning that if the information found by Common Cause is accurate, Thomas did not comply with the law. SCOTUS justices are supposed to obey the law, even more than everybody else, in some respects. Legal ethics expert Steven Lubet (I used his legal ethics textbook when I taught the subject at American University!) says that a failure to disclose spousal income by a federal judge “is not a crime of any sort, but there is a potential civil penalty” for it. “I am not aware of a single case of a judge being penalized simply for this,” the professor says.

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