Ethics

What a week to start blogging.  I recently wrote this article arguing against the use of appearance-based standards in the recusal context, and now this story from the L.A. Times about Judge Kozinski?s personal website and whether he should recuse himself from presiding over an obscenity trial presents a great scenario for getting to the heart of why I find appearance-based recusal analysis unsatisfying.

The L.A. Times story cites Prof. Stephen Gillers as saying the public could reasonably question Judge Kozinski?s objectivity on the subject matter of the trial, now that the contents of Kozinski?s personal website are publicly known.  Prof. Gillers is perfectly correct about the standard for recusal currently applicable to Judge Kozinski: it is indeed appearance-based.  My response here is therefore only a challenge to the theory behind that current standard: 

If it makes sense to say that Judge Kozinski appears unable to preside impartially over an obscenity trial because he has these pictures on his website, why shouldn?t we also second guess the impartiality of a judge who doesn?t have such pictures on such a website?  Might not that other judge have very strong personal feelings on the other side of the issue? We just don?t know.  Only the judge does, and it doesn?t make sense to me to flip the switch just on these facts alone: there is nothing in the article to suggest that Judge Kozinski has an actual predisposition on the legal issues in the trial, any more than any other judge who either doesn?t have such material on a website or simply isn?t yet publicly known to do so.  (Further stories, by the way, report that the website was maintained by the judge's son and it is unclear who contributed what material, making the appearances yet murkier.) 

Prof. Gillers also raises a point in the L.A. Times article about whether it would be better if judges didn?t reveal their private lives to the public.  I?m not a proponent of anyone going out of his way to reveal his private life to the public, but it strikes me that it doesn?t make sense for judges to hide their personal lives just in order not to upset the public, if the things the public would be upset about actually matter to the judge?s decisionmaking.  The public?s awareness or unawareness of what judges are doing in their private lives shouldn?t be the dispositive factor. 

Judge Kozinski himself once wrote on the appearance of impropriety standard (in this law review article from 2004): ?Judicial ethics, where it counts, is hidden from view, and no rule can possibly ensure ethical judicial conduct.?  I?m inclined to agree with him on the first point, and on the second to emphasize that reliance on appearances is particularly ill-calculated to ensure ethical judicial conduct.  Judge Kozinski concludes in that same article: ?But, to my mind, we'd all be better off in a world with fewer rules and a more clear-cut understanding that impartiality and diligence are obligations that permeate every aspect of judicial life--obligations that each judge has the unflagging responsibility to police for himself.?  If we?re relying on appearance standards, after all, couldn?t we just as easily say there is the appearance from his law review article that Judge Kozinski feels strongly enough about judging impartially to preside fairly over this trial, as over any other, no matter what he's doing off the bench? 

I don't by any means endorse Judge Kozinski's contribution to this website as appropriate.  I just take the position that appearances won't lead us to any reliable conclusions about whether a judge can preside over a trial or otherwise reach judicial decisions impartially.