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Discussions about judicial ethics remind me a bit of the old, old joke concerning the drunk who's crawling around on all fours under a lamp-post one night. A policeman comes along and asks him his business and the drunk explains that he's looking for a quarter he lost. So the policeman offers to help out and pretty soon they're both crawling around looking for the coin. After about a half hour of this, the policeman finally asks in frustration: "Are you sure you lost the quarter around here." "Oh, no," answers the drunk, "I lost it in the alley, but it's too dark to look there.
So, too, it is with judicial ethics. The discussion focuses on the tensions and potential conflicts that can be readily detected by an outside observer. For example, pretty much every one agrees that a judge should not sit in judgment on a case on appeal if he participated in the decision below that is now under review. Similarly, everyone agrees that a judge may not sit in judgment in a case where he participated as a party or a lawyer. Of course, those are just two of the most obvious examples; we have a large number of rules and precedents saying that a judge may not participate in a case where it would create the appearance of impropriety.
I should state at the outset that I'm not a big fan of this approach to judicial ethics, nor do I believe that it's necessary or inevitable. Take the two examples I've given. As you will recall, in the early days of the Republic, justices of the Supreme Court rode the circuit, and it was quite common for these cases to later come before the Supreme Court, so the justices would review their own decisions. As to the second type of situation, think about Marbury v. Madison.
The issue that led to the landmark opinion in that case arose because a commission signed by President Adams and counterŠsigned by the Secretary of State, was not delivered before Adams left office and Jefferson became president. The Secretary of State was later heard to say that he was really sorry not to have delivered the commission, but he was too busy. Small wonder he was busy--he was holding down two jobs--as Secretary of State and Chief Justice. It was, of course, Marshall himself.
The approach to disqualification reflected in Marbury v. Madison and cases of that era was based on the English common law notion that a integral part of the judge's job is to set aside whatever personal interests and biases he might have, and decide cases impartially on the merits. If a judge felt that he could not set aside personal biases in a particular case, he would then recuse himself. But the obligation was to summon the internal fortitude and will to rise above personal considerations in deciding cases.
I'm not going to argue today that we ought to go back to a regime where a judge's ethical obligation consists entirely of setting aside his personal biases and interests, no matter how serious a conflict of interest he might have. I do want to point out that the modern approach, with its focus on appearance of impropriety, overlooks the most frequent and important ethical issues judges face in discharging their duties.
The first ethical issue I want to examine has to do with work allocation--the amount of time and effort judges spend on cases, particularly small cases. Judicial caseloads have increased tremendously over the last few decades, and continue to do so. When I graduated from law school in 1975, I clerked for the Ninth Circuit and at that time each of the court's 13 active judges participated in about 210 merits dispositions per year. In 2002 that number stood at 492 cases per active judge, and the Ninth Circuit is far from the busiest court of appeals in the country. That dubious honor is held by the Eleventh Circuit, which decided 843 cases per judge in 2002. Just imagine what that means: Every judge of the Eleventh Circuit signed off on the merits disposition of 2.3 cases a day, every day of the year-weekends and holidays included.
Add to this the fact that not all cases are created equal. Most judicial work is routine and dull, involving issues that are of no consequence to anyone other than the parties. Just a few cases raise difficult and interesting issues--the kind of issues that make for an important judicial opinion. When lawyers seek appointment to judicial office, they generally think of the interesting cases as the core of the judicial work; none that I know of seek a judicial appointment so they can spend their days--and nights, and weekends and holidays--slogging through an unending stack of routine, fact-intensive and largely inconsequential cases.
Human nature being what it is, there is a strong tendency to devote a disproportionate amount of judicial time on the big cases, and far less time on the small ones. And there is some justification for this. Preparation of a precedential opinion requires a significant amount of time because such an opinion not only decides the dispute between the parties, but also sets the course of the law for innumerable cases to come. A sloppy, careless, rushed opinion can cause serious problems in the future for countless parties affected by its holding.
A big part of the judicial function consists of allocating one's time between the big and small cases--and this is a decision judges make almost implicitly and without the possibility of complaint by the parties affected. In fact, no one knows precisely how judges allocate their time among the cases assigned to them, but the risk that small and seemingly insignificant cases will be given insufficient attention is ever present.
When people think about this issue at all, they may assume it's not really a problem; after all, most cases are easy and so how much judicial attention do they need anyway? This points to an important paradox in the process of judging. In one sense, most cases heard by judges are very easy; but in a different sense, there are no easy cases. Most cases are easy in the sense that if you took any three judges in the federal judiciary, no matter how diverse their judicial philosophy, and they took a close look at the record, the applicable caselaw and the arguments of the parties, you'd get a unanimous result. But all cases are difficult in the sense that it takes time and attention to get to the point of decision. You have to make sure you understand the record and the arguments; you have to be confident that you have the latest caselaw and that you understand exactly what it says. All this takes a fair degree of concentration and effort, even in the simplest cases.
Most of the time--9 times out of 10, maybe more often--when you're done, you reach an obvious result. And so it seems almost pointless to go to the trouble again and again and again, only to come up with the result you could have guessed from the beginning. It's a bit like banging your head against a padded wall. But then, once in a while, it turns out that what looks like an easy case is actually very difficult, because of some fact buried in the record, or a stray line in a footnote in a recent opinion, and this puts the result in doubt. After 18 years of doing this I have found no way to separate the sheep from the goats, except to take a close look. But how close a look any one judge takes in any one case is strictly a matter of the judge's own conscience.
A issue closely related to that of insufficient attention to small cases is the tendency to delegate to staff essential aspects of the judicial function. Going back to the time I clerked, each federal circuit judge had one secretary and two law clerks. Then in the early 1980s, the staff complement was increased to 5, consisting of 2 secretaries and 3 law clerks. Then sometime in the 90s, judges were allowed to substitute a law clerk for one of the secretarial positions; many, I believe most, circuit judges take advantage of this option, so that now judges generally have four clerks. Then, in the Eleventh Circuit, by special dispensation, judges have been allocated a fifth clerk, apparently on the basis that they have not sought an increase in judicial positions that would be justified by their caseload. I understand that California Supreme Court Justices have 6 law clerks.
During the same quarter century, there has also been a precipitous increase in the number of central staff attorneys. In 1975, our court had a skeletal central staff whose function was largely devoted to processing motions; all merits cases were handled in chambers by judges and their elbow clerks. Today we have something like 70 staff attorneys, all located in our headquarters in San Francisco, and they process approximately 40 percent of our cases in which we issue a merits ruling. When I say process, I mean that they read the briefs, review the record, research the law and prepare a proposed disposition, which they then present to a panel of three judges during a process we call "oral screening"--oral, because the judges do not see the briefs in advance, and generally rely on the staff attorney's oral description of the case in deciding whether to sign on to the proposed disposition. An oral screening panel may meet for 2 or 3 days each month, and during that time dispose of 100, 150 or sometimes more cases in this fashion.
The proliferation of staff coupled with the increase in caseload creates a constant temptation for judges to give away essential pieces of their job and allow them to be performed by other people. The pressure is most severe in the small and seemingly routine cases, especially those handled through the screening process. After disposing of a few dozen such cases on a screening calendar, your eyes glaze over, your mind wanders and the urge to say OK to whatever is put in front of you becomes almost irresistible. The temptation is made no less by the fact that the staff attorneys who present these cases are very experienced and usually get it right. It often takes a frantic act of will to keep questioning successive staff attorneys about each case, or to insist on reading key aspects of the record or controlling precedent until one can say with confidence that the case was decided by the 3 judges whose name appears in the caption, not a single young lawyer a year or two out of law school.
A similar temptation exists as to the bigger cases as well. Writing opinions is a difficult, time-consuming, exacting process. It is a reality of current judicial life that few judges draft their own opinions from scratch; I certainly don't. Generally, the judge gives instructions about how a case is to be decided and what points the opinion should make, but the initial drafting is almost always done by a law clerk. The draft opinion, when it arrives on the judge's desk some weeks later, is generally pretty good--after all, we pick only the best law students. On a casual reading of the opinion, the judge may be able to detect if there are some obvious flaws in reasoning, and will certainly also be able to make some word edits. But this is a very long ways from the time and effort required to study the opinion closely, deconstruct its arguments, personally examine the key portions of the record and carefully parse the precedents--all the things a judge must necessarily do before he can call the opinion his own. Nevertheless, if the judge chooses to fiddle a bit with an opinion drafted by his clerk and then circulate it, no one would know. And, indeed, we do occasionally get opinions that look to me like they were written by someone about a year out of law school without any adult supervision. The only guarantee one can have that the judges are not rubberstamping the lawclerk's opinions, is the judge's own sense of personal responsibility.
Let me now turn to a wholly different kind of ethical issue that judges confront from time to time. Most people believe that the law operates according to a set of fixed rules, and that judges are obligated to follow these rules in deciding cases. Of course, there are some cases where application of the rules of law is unclear, but I want you to imagine a case where the law is quite clear and so that an honest, straight-forward application of the rules leads to a particular result. Most people will agree that, under those circumstances, the judge has an ethical obligation to decide the case so as to reach that result.
But what if the judge looks closely at the case and decides he doesn't like the result? Is the judge entitled to bend the rules so as to reach a result he believes just? I think that most people would say that the judge must put aside his personal feelings about the result and decide the case in accordance to the law. But I also think that most would agree that the judge in that situation faces a conflict of obligations--the obligation to apply the law impartially and the obligation to do justice. We generally reconcile these obligations by saying that justice is served when judges apply the law impartially, regardless of the personal views of the decision-maker.
So far so good. But what if a judge runs across a case where a straight-forward application of the law leads not merely to a result he doesn't like, but to a shocking injustice? May a judge bend the rule of law to avoid a truly monstrous result? Does he have an ethical obligation to do so?
In theory it's easy enough to say that a judge may never ethically bend the rules to avoid a particular result, no matter how bad, but what do you do if you come across a case like the following: You are reviewing a criminal case where a young man with no prior criminal record has been convicted of murder and sentenced to life without the possibility of parole. You examine the record and find that the evidence linking the defendant to the crime is quite flimsy--¼witness identifications are tentative and contradictory, and there is no circumstantial evidence whatsoever. The only solid piece of evidence supporting the conviction is what is known as a jailhouse confession--the testimony of an inmate who shared a cell with the defendant while he was awaiting trial, and who swears that the defendant confessed to the murder. You read this testimony closely and find it transparently unconvincing. It contains no authenticating information the witness would have obtained from the real killer. And, of course, the witness has been given a sweetheart plea bargain in exchange for his testimony. Applying the rules of appellate review in an objective manner, you would have to affirm the conviction. After all, the jury is the trier of fact and, even putting aside all the other evidence, the jury was entitled to return a guilty verdict based on the jailhouse confession. Yet, what if you believe, to a moral certainty, that the confession is a fabrication and that the defendant is probably innocent? Can you--must you--affirm the conviction and let the defendant spend the next fifty years, or whatever time is left to him on earth, locked up like an animal in a 10 foot by 18 foot cell?
Or, if you're not moved by this hypothetical, consider the case where the defendant is convicted of the multiple brutal murder of small children--crimes of which he is doubtless guilty. And, let's say that you are convinced that if the defendant is released, he will surely do it again and again.
As it happens, however, this defendant has a slam-dunk argument that the prosecution's entire case against him was obtained by means of an interrogation that did not satisfy the technical requirements of Miranda. In such circumstances, do you have an obligation to set the defendant free and thereby condemn unknown children to death by torture, or may you ethically put justice above the law and find a way to affirm the conviction despite the technical defect?
I used to think that questions like these had only one correct answer--you apply the law conscientiously and don't worry about the consequences. But I'm no longer sure. I now wonder whether this isn't a false modesty--a kind of hubris--I will accept whatever result the law calls for, no matter how much it hurts innocent people. A troubled conscience is certainly not pleasant, but the real-life, brutal consequences of an unjust judicial decision are suffered by others--the kid who unjustly wastes his life in a prison cell, or the future victims of the slasher released on a technicality.
I am reminded that among the most reviled participants in the Third Reich's persecution of Jews and other minorities were the German judges who enforced the Nuremberg laws. All of these judges claimed as justification that they were simply applying the law. Our collective judgment seems to be that these judges shirked their responsibility--that they should have used their power and authority to undermine what they should have known were unjust laws. Do American judges have a similar ethical obligation?
There are numerous such hidden ethical issues that arise on a daily basis during the course of judging. I'll mention just a few others, though I don't have time to go into any detail:
Do you have an ethical obligation to dissent, even if you know it won't make a difference, and even if it will upset your colleagues?
If you've decided a case in favor of a criminal defendant who is incarcerated pending the outcome of the appeal, do you have a responsibility to move this case ahead of other work so he will be released more quickly? Or, if you're going to rule that the giant corporation can evict the old lady because she can't pay the rent, is it OK to put that case at the bottom of the work pile and not get to it until the snow melts?
If you are writing an opinion, and there are inconvenient facts in the record, may you simply leave them out, or do you have an obligation to mention them?
In rejecting a party's argument in a disposition, may you caricature its position so as to make the argument seem less persuasive
I don't mean to suggest that all of these issues are difficult or close--obviously some are very easy. What I am saying is that such ethical issues arise all the time, and a big part of a judge's job is to confront and deal with them.
How serious are these issues? Let me put it this way: I file a financial disclosure report every year, telling the world what assets I own, just so the parties can confirm I have not--God forbid--sat in a case involving a corporation where I own stock. I find this requirement a nuisance--I have to pay someone several hundred dollars to fill out the report--and a bit dangerous and intrusive, because it discloses various things about me and my family, and our assets, that I would prefer to keep private. But I do file the report because it's required. Yet I cannot imagine that I could possibly be tempted to change my vote in a case because I own stock in one of the parties. I don't claim a special virtue in this--virtue means resisting temptation. What I'm saying is, I wouldn't be tempted. If money were important to me, I'd be practicing law and, in a week or a month--maybe in an hour--I would make much more than my 100 shares of AT&T could possibly make based on my vote in a case. The idea that I would give up my honest judgment in a case for a few dollars is beyond silly--it's ludicrous and insulting.
But the internal temptations that I describe above, those I confront every day. Giving short shrift to small cases, signing on to the work of staff and calling it my own, bending the rules of law to reach a result I like--and the dozens of other ways in which I feel the pressure to do something unethical, yet wholly undetectable by anyone other than myself--all these temptations I must fight off many times every single day.
My problem with the appearance of impropriety standard isn't so much that it's a bad idea, though I think it is. Rather, the problem I see is that it promotes the wrong idea--that in order to keep judges from acting unethically, they must appear to act unethically. It also seems to suggest the converse, that if judges appear to act ethically, they likely are. Nothing could be farther from the truth. A judge can appear to act ethically in every way, yet betray his responsibility in essential respects--and do so in ways that no one will ever know about. Increasing the number of rules and prohibitions--making sure that judges don't attend conferences at swank resorts with plush golf courses--will do absolutely nothing to increase judicial responsibility where it counts. To the contrary, the more rules you have, the more hoops judges have to jump through to avoid the appearance of impropriety--the more likely they are to feel that the hoop-jumping is the alpha and omega of their ethical responsibilities, and the less likely they are to give careful thought to the real ethical pitfalls of the job.
I know that there is a growing tendency to distrust judges--to craft more elaborate ethical rules and restrictions; to expand the scope of what is encompassed with the appearance of impropriety standard; to adopt more and better methods of intruding into judges' private lives--all in a misguided effort to try to ensure ethical judicial behavior. But the hard truth is that none of it matters a bit. Judicial ethics, where it really matters, is hidden from view, and no rules can possibly ensure ethical judicial conduct. In other words there is really no choice to trusting the judges. Maybe we need some external rules, maybe we don't. But, to my mind, we'd all be better off in a world with fewer rules and a better understanding that impartiality and diligence is an obligation that permeates every aspect of the judicial function--one that every judge has the unflagging responsibility to police himself.