Saturday, February 17, 2007
Posted by Alan Childress
The dizzying redrafts and non-final "final" versions of the new ABA Model Code for judges (our prior posts here and here) finally led to media scrutiny and criticism and the resignation of one committee member in protest to what he perceived to be a weakening of the code. But the final, really final action taken--approval of a draft retaining the "appearance of impropriety" standard as an enforceable rule within the actual text of new Rule 1.2--became something of a fizzle to the controversy, as the vote sounded fairly unanimous and the meeting and debate did not drag on (possibly aided by the bad recent publicity and the need to get out of Miami ahead of the weather). This as helpfully reported by the ABA Journal's on-line story Friday, "Judging Judicial Ethics: ABA House Retains Ban on 'Appearance of Impropriety.' "
The mid-year ABA meeting and the House of Delegate's vote in Miami seems to have settled the debate in the ABA drafting process once and for all. The states will have a new, substantially revised Code to consider implementing for their judiciaries.
It is very likely now that the debate is ended at the ABA level. There will be a uniform public presentation of this move (though the debate and PR problems may start anew at the state level as the new code is actively considered). As quoted by the story, one Miami attorney said this approval was a good result not because the New York Times says so but because it is the right thing to do. That is going to be the public face of this version, and understandably so (though the ABA's PR people will do well to not draw attention to editorializing and controversy before the final vote). That's the inevitable and maybe even best result. Certainly it is the most publicly defensible non-nuanced result.
The only problem is that this version of the judicial code was always supposed to be about clearly laying out black-letter rules for judges and telling them what is and is not acceptable behavior. "Appearance of impropriety" can serve as a catch-all critique even without the showing of any violation of any rule, and runs counter to the mission of clear, literal benchmarks. It will generate more ethics complaints and disqualification motions not based on allegation of any actual impropriety. That effect may be tempered somewhat by the responsible enforcement of this code in the states, sensitive to the reality that it's easy to accuse a judge of "appearing" improprietous without having to identify any other rule violated or prove the underlying facts with clear and convincing evidence. I hope the states will keep that in mind and look for a real hook, an actual black-letter rule, when they take serious action against a judge.
I am reminded a little of the 1995 Aaron Sorkin/Rob Reiner film The American President, in which there's an exchange between the President (Michael Douglas) and, I think, his domestic policy adviser (Michael J. Fox). The adviser (well, maybe it was the press secretary) says that it is very important to not look like the White House is panicked. The President replies that, see, he thinks the important thing is to not actually be panicked.
To me, the language of "appearance of impropriety" is an important reminder that appearances do matter and should absolutely be the standard a judge imposes on himself or herself in every action taken and every interest pursued. I hope, though, that in imposing that standard as an external matter--as a punitive tool--the states are realistic and fair to the legitimate or even rule-approved actions of their judges.