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Public Comments Aid Study of Proposed Changes to Code of Conduct for Judges
Proposed revisions to the Code of Conduct for United States Judges drew relatively few public comments that, nevertheless, included a wide range of suggestions now being reviewed and analyzed by a Judicial Conference committee.
The comments posted at www.uscourts.gov/library/codeOfConduct/comments.cfm, were received by the Judicial Conference Committee on Codes of Conduct during a six-week period that ended April 18. The Committee plans to forward its final recommendations to the Judicial Conference for consideration at its September 2008 session.
The Committee had invited comments after posting the proposed revised Code of Conduct online in two versions: the entire proposed new Code and the revisions proposed to the current Code. (See www.uscourts.gov/Press_Releases/2008/code_comments.cfm.)
“Though many of the changes to the Code are subtle, taken together they convey a decidedly more restrictive tone that we believe will enhance the integrity of the Judiciary,” the Alliance for Justice said. “Those who have the privilege to serve on the federal bench wield enormous power over the lives of Americans. In exchange, they should be held to the highest standard of independence, honesty, and integrity, and take all steps necessary to avoid the appearance of impropriety. The proposed revisions would facilitate that goal, and we wholeheartedly support their adoption.”
The American Judicature Society (AJS) said the proposed revisions “represent a noteworthy step forward in the evolution of the standards of conduct for federal judges.” The AJS also suggested adoption of “guidance for nominees to the federal bench,” stating, “Such rules help prevent political or other inappropriate conduct in the periods between nomination, confirmation, and swearing-in that might have repercussions once a new judge begins to serve.”
The National Conference of Bankruptcy Judges took issue with proposed Canon 4G, which states, “A judge should not use to any substantial degree judicial chambers, resources, or staff to engage in law-related activities permitted by this Canon.”
The group’s comment said, “Bankruptcy judges ordinarily perceive that it is part of their ‘job’ to encourage and assist bar and other professional groups in continuing education in bankruptcy law and practice and the encouragement of higher ethical standards among attorneys who practice in their court. To do so often involves preparation of articles, seminar outlines and other similar materials.
“If such activities are appropriate and laudable, a judge ought to feel free to utilize his/her staff to assist in the preparation of such materials, so long as they do not involve personal compensation, directly or indirectly, to the judge,” the bankruptcy judges group said. “The language of this Canon seems to disfavor such use at all or leave its propriety in some doubt. It ought to expressly approve it, again assuming no compensation to the judge being involved.”
Chief Judge Frank Easterbrook of the U.S. Court of Appeals for the Seventh Circuit suggested more restrictive language in one instance. A sentence in the proposed commentary to Canon 2B states: “Nor should a judge use judicial letterhead to gain an advantage in conducting personal business.”
“The phrase “to gain an advantage in conducting” should be deleted,” Easterbrook wrote. “Use of judicial letterhead is never appropriate when conducting personal business. Gaining an advantage may be the goal of this misuse of office, but the rule should be absolute. Trying to determine, case by case, why a judge used the letterhead is a mistake.”
Carl Bernofsky of Louisiana wrote to point out what he considers a weakness in the existing rules. “Specifically, it is important to prohibit judges who are adjunct professors at colleges and other educational institutions from adjudicating cases in which those institutions are a party . . . Judges who teach provide an important service to students and the institutions that employ them, and although they are usually not paid for such service, rewards can come in the form of paid travel to other states and countries. In any event, the association of judges with the administration that employ them for educational purposes should be grounds to disqualify these judges from sitting in cases that involve those administrations,” he said.
The American Bar Association also commented on the proposed revisions, suggesting various language changes. The proposed revisions are based in large part on revisions adopted in February 2007 when the ABA Model Code of Judicial Conduct was amended.
The Code of Conduct initially was adopted by the Judicial Conference in 1973, and was substantially revised in 1992.