Lady Justice

The recent headlines concerning Chief Judge Kozinski have reminded me of the central misunderstanding or willful ignorance some judicial critics suffer from in their critiques of the judiciary. Namely, their steadfast belief that the mere appearance of impropriety must mean there is actual ethical impropriety afoot, and the absence of such appearances must mean there is none.

This week, I came across an op-ed Chief Kozinski wrote for Legal Affairs magazine back in 2005 regarding the appearance of impropriety and found it refreshingly blunt and accurate.

My problem with the appearance-of-impropriety standard is that it promotes the wrong idea—that in order to keep judges from acting unethically, ethical rules must prevent judges from appearing to act unethically. It also seems to suggest the converse: that if judges appear to be acting ethically, they probably are. Nothing could be further from the truth. A judge can appear to act ethically and still betray his responsibility in essential respects and in ways no one will ever know about[, namely] … [g]iving short shrift to small cases, signing off on the work of staff and calling it my own, bending the law to reach a result I like, and the dozens of other ways in which I feel the urge to do something unethical, yet wholly undetectable by anyone other than me.

As to the furor that is often raised about a judge presiding over a case in which the judge has at least somewhat of a financial interest, Chief Kozinski explained:

I file a financial disclosure report every year, giving the world a list of my assets, just so litigating parties can confirm that I did not—God forbid—sit in a case involving a corporation whose stock I hold. I find this requirement a nuisance and a bit dangerous and intrusive, because it makes public information about me and my family that I would prefer to keep private. But the report is required by law and is considered an important safeguard of judicial integrity.

Yet I can’t imagine that I could possibly be tempted to change my vote in a case because I own stock in one of the parties. If money mattered to me, I would be in private practice and, in a month or a week—maybe an hour—I would make much more than my one hundred shares of AT&T could conceivably change in value 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.

Most professional court critics either can’t comprehend or refuse to accept that a jurist wouldn’t change his or her vote in a matter just because there might be some financial advantage to be gained by doing so.

I continue to believe that this disconnect on the part of these critics emanates from their true ignorance of just how profitable and lucrative private practice is and would undoubtedly be for an appellate judge who left the bench. As I discussed in a post almost a year ago regarding whether campaign contributions to Texas judges are really such an irresistibly corrupting force (a generally bad idea—yes, absolutely corrupting—no):

Partners at BigTex firms in this state (where the majority of sitting SCOTX Justices have begun their practices) routinely make anywhere from $400k to $2.5 M per year. Counting the new raise SCOTX Justices just received in 2005, they now make $150k per year, a full $10k less than their clerks do as soon as they walk out of the Tom C. Clark building.

How on Earth could a few thousand or even a few million in campaign donations (which must be reported and can’t be spent on personal expenses without risking imprisonment and disbarment) be even slightly corrupting to someone who could make that much and more in the private sector without any of the ethics reporting requirements or public scrutiny?

The sheer ignorance of some like Texas Watch or Texans for Public Justice of the personal financial sacrifice imposed by choosing to sit on the bench instead of in a firm office is glaring. Anyone so easily corrupted by money would never choose to walk away from the private sector in order to someday “pay back” donors with favorable decisions, all for a relative pittance in compensation.

Thx to Chief Kozinski and Legal Affairs

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