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Judicial Ethics 100 Years Later

By Marla N. Greenstein

ABA Model Code of Judicial Conduct (2010)

Rule 2.2

A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.

Rule 2.3

(B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.

Today, we can read these provisions of the ABA Model Code of Judicial Conduct as consistent with each other and as a noncontroversial statement of the expectations of our judicial system. Judges can both apply the law and perform their duties without bias or prejudice. We live in a world where it is common to see women seated as jurors, serving as prosecutors and other attorneys, and, perhaps less common (but not unusual), as judges in our courts. And yet, just 100 years ago, in an America where my grandmother was raised, a judge could uphold and apply the law by also manifesting bias and prejudice against women. As the articles in this issue of The Judges’ Journal attest, the suffrage movement was about much more than the right to vote in an election. The opposition to that movement and the energy behind the movement itself brought recognition to women as full citizens in our country, exercising every aspect of citizenship.

Acknowledgment of the 100 years of granting voting rights to women is a reminder of our imperfect striving for justice. Rule 2.3 is an imperfect enumeration of individual traits, describing individuals who may experience bias and prejudice in our courts. One hundred years ago, bias based on sex, gender, and marital status would have been in the forefront. Today, the full list resonates in our daily encounters. But even those related to sex, gender, and marital status remain notable.

Among international human rights efforts and legal reforms, rights of women are paramount concerns today. Court systems seeking our guidance and assistance are encouraged to increase the presence of women in their legal professions and their judiciary. The well-known international treaty addressing equal rights and discrimination against women, the Convention on the Elimination of All Forms of Discrimination Against Women, remains an important standard that echoes the women’s suffrage movement in the United States. International standards compel governments to consider the role of women in their institutions. The Committee on the Elimination of Discrimination Against Women has emphasized concern over a lack of diversity, especially as it relates to women: “societies in which women are excluded from public life and decision-making cannot be described as democratic” (1997 Committee on the Elimination of Discrimination Recommendation 23). That participation begins with the right to vote, but that is just a beginning.

Today, it is striking to read prior iterations of our Codes of Judicial Conduct that refer to a judge as “he” and ignore the possibility of discrimination or harassment on the basis of sex. Our language has helped to move us forward, aided in no small part by the presence of women in the bar and on the bench. But it is humbling to recognize that women in our country were denied the right to vote as recently as 100 years ago and that barriers to meaningful access to public life still exist.

It is our task to ensure that judges effortlessly embody the standards of Rules 2.2 and 2.3, upholding the law and acting fairly and impartially, without bias or prejudice toward not only women but any person engaging our courts. Many of the obstacles in law have been lifted, but bias and prejudice have a longer life. The right to vote can no longer be “abridged” on the basis of sex. Ethics demand our recognition that a basic right was denied to citizens for the first 150 years of our democracy. Upholding the law is an imperfect step toward impartial justice. As we mark this anniversary of the Nineteenth Amendment, a recognition of our justice system’s shortcomings is a fitting tribute.

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By Marla N. Greenstein

Marla N. Greenstein is the executive director of the Alaska Commission on Judicial Conduct. She is also a former chair of the ABA Judicial Division’s Lawyers Conference. She can be reached at [email protected].