The Real Issues of Judicial Ethics

TLDR: The Canons of Judicial Ethics as mentioned in this paper focus on the tensions and potential conflicts that are most easily detected by an outside observer, focusing on the tension between a judge and a party or a lawyer.

Abstract: The Canons of Judicial Ethics remind me of the old joke about 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 lost quarter. So the policeman offers to help and pretty soon they’re both crawling around looking for the coin. After about a half hour of this, the policeman gets fed up and asks: “Are you sure you lost the quarter around here?” “Oh, no,” answers the drunk, “I dropped it over in the alley, but it’s too dark to look there.” So, too, it is with the Canons of Judicial Ethics. The Canons focus on the tensions and potential conflicts that are most easily detected by an outside observer. For example, pretty much everyone agrees that a judge should not sit in judgment on a case on appeal if he participated in the decision below. 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 plenty of rules and precedents saying that a judge may not participate in a case where doing so would create the appearance of impropriety. I should mention at the outset that I’m not a 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 the justices rode circuit, and some of the cases they heard in