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The special commission weighing revisions to the American
Bar Association's code of judicial conduct seems to have missed
the lesson of Justice Antonin Scalia's notorious duck-hunting
trip with Vice President Dick Cheney: Americans don't appreciate
it when judges behave in ways that undermine the judicial
system's fairness and integrity.
The bar panel's newly unveiled proposals for revamping the
Model Code of Judicial Conduct would actually weaken the core
provision that requires judges to avoid not just actual impropriety
in all their activities, but also the appearance of impropriety.
Although the new version retains the appearance standard,
it waters it down by saying that violations will not "ordinarily"
lead to professional discipline unless there are charges of
other rule violations. Intentionally or not, as Senator Patrick
Leahy of Vermont aptly noted last week in a letter to the
bar association's president, Dennis Archer, that transforms
a crucial ethical mandate into "an ancillary add-on"
and significantly diminishes its moral force and deterrence
value.
The proposed change was apparently driven largely by an overblown
concern about the "vagueness" of the appearance-of-impropriety
standard. Judges interpret similar terms every day, and there
now exists a substantial body of case law and ethics opinions
construing the type of behavior that gives rise to an appearance
of impropriety. The proper way to address any undue murkiness,
in any event, is for the commission to provide further guidance,
not to dilute expectations.
In another disappointment, the commission's proposal failed
to tighten the rules on disqualification to match the stronger
and more clear-cut requirements for the federal judiciary.
A federal judge is barred from sitting in a case involving
a company in which the judge has any economic interest. A
provision of the bar's current code, retained in the new proposal,
requires disqualification only when a judge deems that the
economic interest is more than "de minimis," and
"could be substantially affected."
Even more baffling, the commission has deleted the current
instruction to judges to resolve any ambiguity in the Code
of Conduct in a way that advances public trust in the judiciary's
"integrity, independence and impartiality." Practically
and symbolically, that deletion is a real mistake.
Mark Harrison, the Arizona lawyer who leads the commission,
stresses that the draft is tentative and partial. Plainly,
other critical issues still loom - not least of which is the
festering scandal of the well-attended, expense-paid judicial
seminars that are held at nice resorts and underwritten by
private interests bent on influencing judicial decisions.
The commission still has time to do the right thing, but its
proposals so far are not very reassuring.
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