Academic

McKoski on Judge David Davis & Judicial Impartiality

By Lawrence Solum

Ray McKoski (The John Marshall Law School) has posted Reestablishing Actual Impartiality as the Fundamental Value of Judicial Ethics: Lessons from ?Big Judge Davis? (Kentucky Law Journal, Vol. 99, No. 2, 2010-2011) on SSRN. Here is the abstract:

The legitimacy of the judicial branch of government depends on the impartiality of its judges. Nineteenth century lawyers and litigants understood this fact and regarded actual impartiality as the fundamental value of judicial ethics. Today, the emphasis on maintaining judicial legitimacy has shifted from reality to perception. Modern codes of judicial ethics are designed first and foremost to protect the ?appearance? of impartiality by barring any personal, financial, civic, or political activity of a judge that may be perceived as adversely reflecting on judicial objectivity. Insuring impartiality in fact has become a secondary concern.

The career of nineteenth century judge David Davis illustrates that actual judicial impartiality, not the appearance of impartiality, sustains public faith in the judiciary. Davis was universally recognized as an impartial judge even though his off-bench alliances, especially with Abraham Lincoln, shouted out partiality and favoritism. After establishing Judge Davis?s unimpeachable reputation for courtroom fairness, the Article evaluates his off-bench activities under modern rules of judicial conduct. Next, the Article traces the transition from actual impartiality as the measure of a judge?s worth in Davis?s time to today?s emphasis on appearances. Finally, modest reforms in judicial selection, evaluation, education, and discipline are offered as a means of reestablishing actual impartiality as the fundamental value of judicial ethics.

Full post as published by Legal Theory Blog on March 24, 2011 (boomark / email).