These basic concepts governing judicial behavior also appeared in other early civilizations. From the Torah, many passages set out clear standards for those who acted as judges, including “You shall not render an unfair decision: do not favor the poor or show deference to the rich; judge your kinsman fairly.” (Leviticus 19:15.) Socrates once famously remarked, “Four things belong to a judge: to hear courteously, to answer wisely, to consider soberly, and to decide impartially.” Developments occurred in Roman law over the centuries that established the first professional legal experts who administered the law, thus aiding procedural fairness, but it also refined certain judicial ethical concepts. For instance, going beyond the simple requirement of impartiality, the 6th century CE Code of Justinian allowed for one party in a dispute to seek recusal of any judge considered to be “under suspicion.” In England, from the 14th century through the early 18th century, halting steps related to advancing judicial impartiality occurred, particularly in securing judicial independence from the crown through tenure and guaranteed adequate pay, and those developments helped to limit judicial corruption.
The English experience through this time clearly inspired the Founding Fathers, who, in Article III of the US Constitution, laid out the requirements that federal judges had a right to hold their offices “during good [b]ehavior” and a right to receive compensation, “which shall not be diminished during their [c]ontinuance in [o]ffice.” The Judiciary Act of 1789 established the federal judicial system but only nominally addressed ethical obligations as the act only required that federal judges take an oath to “do equal right to the poor and to the rich” and “faithfully and impartially” discharge their duties. In 1792, Congress subsequently enacted a disqualification statute, which required federal judges to recuse themselves in cases where they had an interest in the proceeding. Some attempts were made at the beginning of the 20th century to develop judicial ethics rules after the ABA adopted the first set of professional ethics rules for attorneys in 1908, but those initial efforts were unsuccessful. Then came America’s favorite pastime, which became a fulsome catalyst for an active approach to judicial ethics.
In 1919, perhaps baseball’s greatest scandal occurred. Several baseball players were criminally charged with fixing that year’s World Series. The sport’s reputation was in tatters, and baseball team owners were seeking a way to reclaim the sport’s wholesome reputation. They decided the answer to their problem was to hire an all-powerful baseball commissioner, and they turned to a man with an imposing name – Kenesaw Mountain Landis – who had an even more impressive job – Federal Judge for the United States District Court for the Northern District of Illinois. Judge Landis, who was an ardent fan of the sport, surprised many by believing he could work both jobs at the same time, receiving his $7,500 judicial salary along with a $42,500 salary as the first national commissioner of baseball.
From our modern perspective, the fact that Judge Landis held both positions for two years is incomprehensible, and, at the time, a number of people, including the Attorney General of the United States who investigated Landis’s situation and a US Congressman who attempted to impeach him, thought the judge’s actions damaged judicial integrity. Ultimately, the ABA voted to censure Judge Landis in 1921 and he resigned from the bench shortly thereafter. As a result of Landis’s actions, the ABA was able to adopt in 1924 the Canons of Judicial Ethics, which were intended only as a “guide and reminder for judges,” with no enforcement mechanisms. They have been revised multiple times into its current version – the 2007 Model Code of Judicial Conduct (with small changes made since then).
Of course, judges today have more than laudatory guidelines to follow. In 1960, California established the nation’s first commission to investigate judicial misconduct and impose discipline in the courts of record, and, by 1980, every state had done the same. Almost all administrative law judges throughout the nation are also subject to ethical codes of conduct. At the federal level, the Judicial Conference of the United States adopted in 1972 the Code of Conduct for United States Judges, which applies to all judges in the lower federal courts. Finally, and perhaps fitting as the 100-year anniversary of the adoption of the first judicial ethics rules approached, the United States Supreme Court last year adopted its own code of ethics. This adoption by the Supreme Court has been met with much criticism as woefully inadequate, but, as we have seen, judicial ethics is an evolving process. Considering that the public’s trust in our judicial systems has lessened over the years, it is imperative that we all work to raise judicial ethics standards, so that the public’s respect and trust in the work we do as judges does not further falter.