Those of us who work with court systems or are a part of a judiciary understand the complexity of courts, the diversity of their makeup, and the uniqueness of state and local systems. Courts in this country diverge remarkably in their structure, the autonomy of local courts, how judges are selected, and the tenure of judges. The public does not distinguish the federal courts from the state courts or even administrative judges from judicial branch officers. When a headline asserts that a member of the Supreme Court of the United States has received financial benefits related to a case before that court, the public assumes that the practice is universal.
There is also a connection between judicial selection methods and perceived political influence on judges and the courts. While ethics codes restrain campaign speech for judicial elections to not permit pledges or promises, judicial candidates often “show their hand” in less overt ways as part of their efforts to win a judicial seat. So, too, legislative confirmation hearings for both state and federal judges, where they occur, imply certain expected outcomes couched in terms of “judicial philosophy.” And once a judge is appointed, any news reporting of a judicial decision in a high-profile matter is accompanied by noting which executive branch official appointed that judge. Those news reports directly imply that the appointed judge has decided the matter in accordance with the wishes of the official who appointed the judge.
Judicial ethics and financial disclosure systems can be robust and often are. When active and transparent, these systems directly address the underlying perceptions that judges are not accountable and are partial decision-makers. Several of the articles in this issue highlight how those systems are best used and where they fall short. Robust judicial standards for disqualification exist and are implemented throughout the state and federal systems. That meaningful judicial disqualification standards and enforcement do not exist for the highest court in the land does a disservice to the thousands of judges who disclose and disqualify routinely in both state and federal courts.
So, too, public discipline of judges for misconduct can illustrate to the public that judges are ethically accountable. As I was drafting this introduction, the Judicial Council of the Ninth Circuit publicly issued an Order and Certification in a complaint of judicial misconduct against a U.S. district judge in my judicial district that led to his resignation (In re Complaint of Judicial Misconduct, No. 22-9021). In the press release accompanying the order and detailed 30-page report (July 8, 2024), Chief Circuit Judge Mary H. Murguia made this statement:
The Judiciary is entrusted to self-govern and, in doing so, must hold its federal judges to the highest standards of integrity and impartiality. We take judicial misconduct complaints seriously. When allegations arise, the Judiciary conducts a fair and thorough investigation that focuses on promoting a civil and respectful workplace, free of discrimination and harassment, and maintaining the integrity of the Judiciary. The process seeks to preserve the effective and expeditious administration of the business of the courts. In all respects, this was a serious and sensitive matter. I thank the witnesses who provided information, understanding fully how difficult that may have been. In my role as Chief, I will continue to ensure that our judges are held to the highest standards.
In my work as executive director for a state judicial conduct commission, I am ever mindful of the responsibility that Chief Judge Murguia expressed. The members of judicial discipline commissions across the country recognize the vital role that they play in holding judges accountable for ethical lapses and especially for those lapses that undermine confidence in the impartiality and integrity of the courts. David J. Sachar’s piece highlights the special role that these commissions play in maintaining confidence in the justice system.
The complaint cited above reflected an abuse by the judge in his role as employer and the special role that a judge has when employing law clerks. Susan Fortney’s article highlights another aspect of this role and its ethical implications.
Transparency is more than a public relations service; it enhances confidence in the judiciary as a whole. Judge Morgan Christen’s piece highlights the many ways that the judiciary can communicate with the public to enhance confidence through understanding. Other pieces in this issue of The Judges’ Journal highlight the broader shadow that the Supreme Court of the United States casts when it fails to address its own accountability. Both Judge Jeremy Fogel (Ret.) and Teresa J. Schmid’s articles highlight these issues and the role that we all can play in making a difference. And Judge John C. Allen IV’s piece notes the historic grounding and evolution of our judicial ethics codes. There is more work to be done. Public confidence in our judicial system demands that we rise to the challenge.