Legal Ethics Forum

Due Process and the Appearance of Judicial Impartiality

In Williams v. Pennsylvania, the Supreme Court found that a prosecutor who decides to seek the death penalty in a case cannot, consistent with due process, later sit as a judge reviewing the defendant’s conviction in that case.  As the Court put it, “Chief Justice Castille’s significant, personal involvement in a critical decision in Williams’s case gave rise to an unacceptable risk of actual bias.” And Caperton v. A.T. Massey Coal Co., tells us that once the circumstances create an unacceptable risk of actual bias on the part of the average judge, game over—due process disqualifies the judge.

But the Court did not stop there. For some reason the Court brought appearances into the mix by stating that the unacceptable risk of actual bias in Williams “so endangered the appearance of neutrality that [Castille’s] participation in the case “‘must be forbidden if the guarantee of due process is to be adequately implemented.’” That sentence is absolutely unnecessary to the opinion. The Court’s factual finding that the circumstances created an unacceptable risk of actual bias rendered the appearance of those circumstances to the ordinary observer irrelevant. More importantly, the sentence directly ties the appearance of partiality to the protection afforded by the Due Process Clause. The Court’s statement may foreshadow a future opinion that constitutionalizes the American Bar Association’s appearance of partiality disqualification standard.

Many times the Court has loosely spoken of protecting the appearance of impartiality as an important state interest, but the Court has never held that due process protects appearances.  Williams may lay the groundwork for such a decision. Most likely, the main stumbling block to the Justices constitutionalising appearance-based disqualification is that the new standard would apply to them.

Cuban exiles broke into the Watergate for Nixon, but Trump outsources his political espionage to the Russians

Foreign nationals are prohibited from contributing to US political campaigns, but US candidates apparently can openly encourage foreigners – and foreign governments- to hack opponents’ computers:

http://www.nytimes.com/2016/07/28/us/politics/donald-trump-russia-clinton-emails.html?_r=0

So what is President Putin’s reward for this contribution to the US presidential campaign?  Mr. Trump says that he “does not control” what the Russians do.  Enough said.

"The Ethicist" Gets It Wrong in the New York Times

[Cross-posted on The Faculty Lounge]

The “Ethicist” column in the New York Times Magazine was originated by a humorist, but it has lately been written by Kwame Anthony Appiah, a highly regarded philosophy professor at New York University.  The format is the same; readers send in their real-life ethics quandaries, and Appiah provides them with advice.  His answers are usually insightful and sometimes provocative, although I think that they are too often hedged with what the letter-writer “might” do or “probably” should consider.  Even so, the “Ethicist” is the first page I turn to in the Magazine (after I have finished front section, the Sunday Review, and the Book Review).

Appiah’s current column, however, is disappointingly weak, and he missed an opportunity to dispense some meaningful ethics advice.

The question was about the letter-writer’s obligation to a dying friend, who had long ago fathered a child with a woman other than his then wife.  The friend seems never to have told anyone else about the child, including his two adult children:

I believe I am the only person in his circle of friends and family who knows that he has another child with another woman.  That child is probably close to 30 now.  My friend has had no contact with the child since birth and almost no contact with the child’s mother.  This appears to have been the way they both wanted it.

The letter-writer’s question is whether to defy the dying man’s wishes and tell the known children about their secret half-sibling, either now or after their father passes away.

Appiah does not provide a firm answer, saying only that the friend’s request for secrecy will not “have the same gravity” after his death.  It would also “be good to be clear about his reasons” before deciding whether to override them.  The equivocation was not necessary, as I believe there is a clear answer to the ethics question, although Appiah did not touch on it.

The friend’s conduct toward his secret child was profoundly unethical.  Even if the child’s mother wanted no contact with him – a questionable assertion, which is almost always the favored excuse of a defaulting parent – that does not mean the child felt the same way.  Nearly all children want some contact with their fathers, and every single one is entitled to financial support.  The friend’s neglect of his own child was, to put it as politely as possible, dishonorable.

This implicates the letter writer’s obligations as well, because he or she has been designated as “trustee of the trusts he established for his two children.”  But as the letter writer knows, there are actually three children.  An out of wedlock child has equal rights to inheritance in every state, and thus the secret child has a valid claim on his or her father’s estate – which is at least sufficiently extensive to warrant the establishment of trusts.  Most states also have “pretermitted heir” statutes, which provide for children even if they have not been named in a parent’s will, so long as they have not been specifically disinherited.  We may assume that the latter did not happen, given that the existence of the child has been kept secret (hence, no mention in the will).

I would therefore say that the letter writer will have an ethical obligation – and perhaps even a legal obligation – to inform the secret child of his or her potential inheritance.  This will necessarily also alert the two known children of their half-sibling, while at the same time righting a long-standing injustice.

NOTE:  I will answer some possible questions after the jump.

Alschuler on Easterbrook

Former University of Chicago law professor Al Alschuler has just published an explosive article about Judge Frank Easterbrook.  Posted on the website of the Valparaiso Law Review, the article is titled "How Frank Easterbrook Kept George Ryan in Prison."  Cribbing from the press release:

In an issue of the Valparaiso Law Review published today, Albert Alschuler, an appellate lawyer for former Illinois Governor George Ryan, describes how Judge Frank Easterbrook made six rulings in favor of the prosecution, which the prosecution never sought.  

“All of these rulings were questionable or worse, and the court afforded Ryan no opportunity to address most of them until after Judge Easterbrook’s opinions had been published,” Alschuler writes in an article titled: “How Frank Easterbrook kept George Ryan in Prison.” 

Alschuler is a retired University of Chicago Law School professor who argued Governor Ryan’s case twice before the U.S. Court of Appeals in Chicago.  

Alschuler also dissects eight “falsehoods” offered by Easterbrook in written opinions and statements from the bench.  

“These falsehoods included statements that the trial gave instructions it did not give, that both the defendant and the government made arguments they did not make, that litigants in the Supreme Court made arguments they did not make, that the defendant and government waived or forfeited arguments they did not waive or forfeit, that the Supreme Court said things it did not say, and that several of the defendant’s sentences had expired when they had not expired,” the article states. 

Political purge and totalitarian rule are on our doorstep when politicians demand that opposition leaders be “locked up” and “shot for treason”

The Governor of New Jersey ignites the crowd here:

http://www.cnn.com/2016/07/19/politics/hillary-clinton-republican-convention-chants/

A Trump delegate and advisor opts for a swifter solution to the Clinton problem:

http://thehill.com/blogs/ballot-box/presidential-races/288510-trump-delegate-calls-for-clinton-to-be-shot-for-treason

Where is the rule of law in all of this?

Justice Ginsburg Recognizes Her Mistake

[Cross-posted from The Faculty Lounge]

Justice Ginsburg has withdrawn her statements criticizing Donald Trump.  As reported in the New York Times, 

On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them,” Justice Ginsburg said in a statement. “Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect.

Justice Ginsburg deserves our respect for acknowledging her mistake, which is something that more public figures ought to do more often.

The only remaining question is whether Ginsburg's academic defenders will reconsider their own rationalizations and join her in recognizing that Supreme Court justices should "avoid commenting on a candidate for public office."

Tushnet -- and Feldman -- on Ginsburg [UPDATED]

[cross posted from The Faculty Lounge]

At Balkinization, Mark Tushnet writes,

To the extent that the current flap tells us something interesting about contemporary norms regarding the Court, it is that many people think there's something important about maintaining the facade that the Justices are above politics, at least when they are considering actual cases.

Implicit in this argument is the assumption that all sophisticated people recognize the political intentions of judges, so we might as well pull back the curtain by encouraging them. to simply come out and campaign (or accepting that they will).  Erwin Chemerinsky says that he is looking forward to that.

No one likes facades (well, perhaps with the exception of symbolic interactionists), but let me suggest another way of looking at it.  We may not expect judges to be free from political opinions, but we do expect them to try to put them aside when judging.    Is that always possible?  Of course not.  Is it ever possible? Resoundingly, yes.  

If you don't believe that judges can put politics aside, at least now and then, how do you explain Justice Roberts's vote in the ACA cases?  Or, for that matter, Justice Breyer's vote on the full-state recount issue in Bush v. Gore?

Political neutrality is not a facade, it's an aspiration.  When a justice begins campaigning for or against a candidate, however, it means that she has stopped trying. And that is what is wrong with Justice Ginsburg's recent remarks.

UPDATE: Noah Feldman is another enabler.  Writing on Bloomberg, he observes that "nothing in the Constitution . . . demands that the justice be nonpartisan."  That is true but irrelevant, given the that Constitution did not contemplate the existence of political parties at all.  One of "injuries and usurpations" listed in the Declaration of Independence, however, was King George's control of the judiciary, which led to excessive identification of judges with the then-existing executive branch.

The Constitution thus created life tenure for Supreme Court justices in order to remove them from political domination.  Feldman states that "life tenure guarantees independence, not neutrality," but in this instance that is a non-sequitur.  Why do we care about independence, if not to promote neutrality?

Feldman says, 

The arguments against Ginsburg’s candor almost all come down to the idea that she should have respected propriety and upheld the myth of judicial neutrality. But who, exactly, believes in that myth in the year 2016? It’s been 16 years since Bush v. Gore killed off any vestiges that might have existed.

I would prefer to think of Bush v. Gore as a warning, rather than a model to be followed.  Should presidents after Nixon have authorized burglaries, on the ground that law-abiding presidencies are a myth?  Should future Congresses impeach presidents for political reasons, on the ground that nobody trusts Congress anyhow?  "In for a dime, in for a dollar" is not the right metric for judicial ethics, or any other sort of ethics.

Justice Ginsburg tees up a bogus recusal motion by Donald Trump while others urge her on

Other lawyers and academics are apparently encouraging Justice Ginsburg’s comments, all to the amusement of Mr. Trump who has already called for her to “get off the court as soon as possible.”

http://www.nytimes.com/roomfordebate/2016/07/12/can-a-supreme-court-justice-denounce-a-candidate/ginsburg-knows-if-trump-wins-the-rule-of-law-is-at-risk

http://www.nytimes.com/roomfordebate/2016/07/12/can-a-supreme-court-justice-denounce-a-candidate/justices-have-free-speech-rights-too

http://www.nytimes.com/2016/07/13/us/politics/ruth-bader-ginsburg-donald-trump.html?_r=0

The issue isn’t whether Justice Ginsburg has “free speech rights” allowing her to say what she wants about Mr. Trump. Of course she does. The issue is whether she could do great damage to the Court, and potentially to the Country, by saying it.

Trump has publicly called for judges to recuse on the flimsiest of arguments and his lawyers in earlier cases have filed recusal motions against judges that border on frivolous. He clearly has a problem with the idea of judges he disagrees with telling him what to do. And he has already said that because of what Justice Ginsburg has said, she should be off the Court (he is wrong on that).

As voters, we should do what we can to make wise choices and inform our fellow citizens about these choices. But judges have a duty to protect themselves, and the judicial branch, against attempts to undermine the rule of law. Reckless talk about presidential candidates does not further this purpose.

Justice Ginsburg should not be giving Mr. Trump ammunition to demand her recusal from any case, whether it be a contested presidential election or a contested attempt in Cleveland to deny him the Republican nomination or a contested effort to put other candidates on the ballot.   If Mr. Trump becomes President, the justices will need to decide cases involving presidential powers.  These rulings of the Supreme Court must be beyond reproach. If Mr. Trump is president, we will depend upon other government officials, military and civilian, to uphold the Constitution and respect the Court’s rulings.

Removal and disqualification of judges who don’t support a party line is a first step toward authoritarian government. United States v. Josef Altstoetter et al. Military Tribunal III Council Law No. 10, 1946-1949, Vol. III (1951).  Judges and justices should not give such efforts an excuse or a helping hand, particularly when they loom so near.

Call for Papers: AALS Annual Meeting 2017

The AALS Section on Professional Responsibility invites papers for its program “Professional Responsibility 2017 Works In Progress Workshop” at the AALS Annual Meeting. This workshop will be an opportunity to test ideas, work out issues in drafts, and interrogate a paper prior to submission. It will pair each work in progress scholar with a more senior scholar in the field who will lead a discussion of the piece and provide feedback. 

Submission length: There is no formal requirement as to the form or length of proposals. However, the presenter is expected to have a draft for commentators one month prior to the beginning of the AALS conference. 

Deadline: October 7, 2016. Send submissions to Melissa Mortazavi, Associate Professor of Law, University of Oklahoma, melissa.mortazavi@ou.edu 

Justice Ginsburg’s Words on Trump: true, but unprofessional and potentially harmful

http://www.cnn.com/2016/07/12/politics/justice-ruth-bader-ginsburg-donald-trump-faker/index.html

The last thing we need – with only eight justices on the Supreme Court and the Senate refusing to even hold hearings to confirm a ninth justice -- is a justice making herself vulnerable to calls for her recusal from cases involving Mr. Trump. Regardless of what polls say, the election could be close, and we all know what could happen if it is. Bush v. Gore (2000).

Furthermore, if Trump were to be elected, we would have a president who has already promised extreme and unconstitutional measures. The Court – all nine justices or at least eight – must be above reproach and be ready to stand up to authoritarianism. Issuing orders is not enough; the Court must have the moral authority to persuade the public, and the other branches of government (including the military officers for whom the President is Commander in Chief) that in matters of constitutional interpretation the Court has the final word.

I don’t believe a recusal motion aimed at Justice Ginsburg would be justified and Justice Scalia was just as provocative with his words on many occasions before he passed. But Mr. Trump will call for the recusal of judges at the drop of a hat.  We live in difficult – and potentially dangerous -- times and the Supreme Court justices need to stay focused on their role in defending our republic.

America is not interested in hearing Justice Ginsburg’s opinion about Trump unless and until she gets a sufficient number of her colleagues to agree with her in a case where their opinion matters.  Hopefully there will never be such a case, but if there is she must be ready to deal with it.