Archive for Friday, May 28, 2004

Judicial ethics

May 28, 2004


A study of federal judicial ethics is good insurance that the U.S. judiciary will adhere to the highest ethical standards.

Even a U.S. Supreme Court justice may not be qualified to act as judge and jury in his or her own case.

That's more or less the process currently used to determine whether a justice should be disqualified from a case because of a conflict of interest. Each justice decides whether his or her contacts or actions constitute a conflict, and the decision of the justice is final.

This policy has been the focus of some scrutiny recently, especially in a couple of instances involving Justice Antonin Scalia. In one case, a number of newspaper editorial pages and other observers questioned Scalia's decision not to disqualify himself from a case appealing a ruling that ordered public disclosure of information from an energy task force chaired by Vice President Dick Cheney.

Scalia reached that conclusion despite the fact he had recently invited Cheney to join him on a hunting trip with a friend in Louisiana. He said there was no conflict because the case wasn't discussed during the trip.

There's no reason to doubt Scalia's word on that point, but we're talking about the appearance of impropriety here, and the appearance of this situation could raise questions. One of those questions is what protection the American people have against a justice who is either so oblivious or so unscrupulous that he or she wouldn't show good judgment in deciding when it was appropriate to step aside from a case.

Chief Justice William Rehnquist is acknowledging the legitimacy of that concern with his announcement this week that he has appointed a six-member committee to study federal judicial ethics and see whether changes are needed. The chair of the House Judiciary Committee reportedly told judicial leaders in a private meeting this spring that they were not adequately disciplining their colleagues.

If this is true, it's a serious matter and Rehnquist is right to look into it. The American Bar Assn. also is working on a recommendation for new conduct rules for judges that will be voted on by the bar next year.

Because of the separation of powers in the U.S. Constitution, the federal judiciary is properly insulated from the influences of the legislative and executive branches. Because they are not elected and are appointed for life, federal judges have a great deal of autonomy, but that autonomy also places a huge responsibility on judges to police themselves and hold themselves and their colleagues to the highest ethical standards.

Is there a problem here? Not necessarily. Could the current system lead to abuses in the future? Maybe. That's why Rehnquist's ethics commission should be thorough and candid in recommending any changes that need to occur to make sure federal judges avoid even the appearance of impropriety.

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