Kaufman, Irving R.

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IntroductionLIONS OR JACKALS: THE FUNCTION OF A CODE OFJUDICIAL ETHICSJUDGE IRVING R. KAUPMAN*To a significant degree, our concept of a code of judicial ethics is shaped by ournotion of the role of those it regulates. In the aftermath of the famous early case ofRex v. Hampden,' the historian C. V. Wedgewood concluded that the judges ofthat period, far from being "lions under the throne... grew to look like sheep oreven jackals."2 Her view of judicial subservience to royal authority under the Stuartsis hardly undisputed, 3 but the essential substance of that controversy-the natureand extent of judicial independence-underlies much of the present confusion overwhat a judicial code of ethics ought to be.Before proceeding any further into my subject, I should add one brief caveat:although I am a member of the American Bar Association Special Committee onStandards of Judicial Conduct, which is entrusted with the task of redrafting the fifty-year-old Canons of Judicial Ethics,4 the views I express here are wholly my own andshould not be taken as those of the Committee. And although the Committee releasedan Interim Report with some "specific conclusions," accompanied by a PreliminaryStatement early this summer,5 and held open hearings on the proposals at the annualABA meeting in August, its deliberations are "[s]ubject to reexamination in the lightof suggestions received after publication of [the] report ....- I should not, there-fore, like to be understood as fixing in advance my response, or that of the Com-mittee, to specific issues and problems. Rather, what I hope to offer here are somepreliminary and highly provisional observations intended to stimulate the thoughtsof others and clearly subject to reconsideration, reevaluation, and modification.Now that the initial furor over judicial conduct raised by the nomination, rejec-tion, and subsequent resignation of former Associate Justice Abe Fortas has turned* Circuit Judge, United States Court of Appeals for the Second Circuit; Member, American BarAssociation Special Committee on Standards of Judicial Conduct; President, Institute of judicial Admin-istration.'Rex v. Hampden, 3 How. St. Tr. 825 (Ex. 1637).C.V. 1VWEoEwooD, THE KING'S PEACE 137 (1955).a "[A]Ithough the roar was somewhat muffled, they remained lions under the throne." Noble, Lionsor jac.kals? The Independence of the Judges in Rex v. Hampden, 14 STAN. L. REv. 71, 761 (i962).AMERICAN BAR ASSOCIATION CANONS OF JtmICIAL ETHICs [hereinafter cited as ABA CANONS]. TheCanons were adopted by the ABA in 1924, and with minor modifications in 1933, 1937, 195o, and 1952,have been little changed in the interim. The Special Committee was appointed by ABA President BernardSegal in August 1969.'ABA SEcrAL CoMITTEE ON STANDARDS OF JUDICIAL CONDUCT, PRELIMINARY STATEMENT and INTauMREPORT (June 1970) [hereinafter cited as PRELIMINARY STATEMENT and INTERIM REPORT].0INTERIM REPORT I. See also PRELIMINARY STATEMENT 3.4 LAW AND CONThMPORARY PROBLEMSto substantive proposals, I believe it is time that we directed our attention morecritically to the question of what precisely we hope to achieve in revising standardsof judicial conduct. And to my mind, the answer to that question is closely allied,to put it somewhat bluntly, to whether we consider our judiciary, on the whole,"lions" or "jackals."The present Canons of Judicial Ethics dearly side with the lions. By that I meanthat the Canons view the judiciary essentially as a body of self-regulating individuals;the Canons exhort judges to seek "independence" 7 and not to concern themselveswith "private political or partisan interests."' That, of course, has always beenour historical ideal' and as one Justice of the Supreme Court said recently, "an in-dependent judiciary has always been one of this Nation's outstanding charac-teristics."'One focus of our tradition of judicial independence has been the manner inwhich we choose judges. Rather than selecting them through written or oralexaminations and advancement under a rigid civil service system, we have generallyfollowed the practice of choosing members of the bar, hopefully of some stature, andelevating them to the bench." Men selected in such a manner most often havedistinguished themselves professionally. In some cases this means that they haveenjoyed financial success, and in others it indicates that they have made fruitfulcontributions to the common good in legal or other fields. Once on the bench, weare accustomed to expect from our judges a breadth of vision that comports withtheir independent status; and I think it not merely happenstance that it has beenmen with diverse interests and backgrounds that have, as a general proposition, metthat test. Edmund Burke is supposed to have said, "Law sharpens the mind bynarrowing it." It seems to me that the words were meant less in praise of theprofession than in warning to it. Judges run the risk of becoming oracles who speakof lectures delivered ten, twenty, or thirty years ago, adequate for their time but notfor ours. To the extent that the judicial profession becomes the daily routine ofdeciding cases on the most secure precedents and the narrowest ground available,the judicial mind atrophies, and its perspective shrinks. What impresses us aboutthe great jurists is not their tenacious grasp of a fine point, honed almost to in-"ABA CANON No. 14: "Independence. A judge should not be swayed by partisan demands, publicclamor, or considerations of personal popularity or notoriety, nor be apprehensive of unjust criticism."'ABA CANON No. 34: "A Summary of Judicial Obligation.. .. [A judge] should be . . . impartial,fearless of public clamor, regardless of public praise, and indifferent to private political or partisan influ-ences ....' See U.S. CONsT. art. III, § x, granting judicial tenure during "good behavior"; Sobeloff, Striving forImpartiality in the Federal Courts, 24 FED. B.J. 286, 288-89 (1964). See generally, J. D~wsomr, ORAcLES orTHE LAW ch. 2 (1968)."5 Chandler v. Judicial Council of the Tenth Circuit, 398 U.S. 74, 136 (970) (Douglas, J., dissent-ing)." Contrast the German practice. See W. WYRAucH, PERSONALITY OF LAWYERS: A COMPARATIVE STUDYOF SUBJacTivE FAcTORS IN LAW, BASED ON INTERvIEWS WiTH GERMAN LAWYERS (r964).LIONS OR JACKALS: TirE FUNCTION OF A CODE OF JUDICIAL ETHICS 5visibility; it is the moment when we are suddenly made aware of the sweep anddirection of the law, and its place in the minds of men.Hence I think that much can be said in favor of the position that we ought toencourage, rather than discourage, judicial activities that exceed the four corners ofcases presented for disposition. There can be few qualities more conducive tocontinued judicial independence than the breadth of vision acquired in differingendeavors to advance law and justice. But having said that, I must draw back fromthe most extreme implications of such a stand. We begin to qualify before we speak.There are, as I see it, two general objectives that limit, and to some extent comple-ment, the aim of an independent judiciary. The first is obvious: a judge's primaryconcern, and hence his primary obligation, is to devote sufficient time to his judicialduties so that justice is done to the litigants before him. Other activities, howeverpraiseworthy, which detract from a judge's ability to perform his judical tasksadequately, must be relegated to a secondary position. All that follows must beconsidered subject to this qualification.' 2Few dispute that a judge must pay primary attention to judicial tasks; nor wouldmany argue with the proposition that a judge's extra-judicial or quasi-judicialactivities' 3 must be structured to avoid even the appearance of impropriety. In asense, limiting outside activities so that they will not give an appearance of partialityor prejudgment is really but another facet of the goal of an independent judiciary.Dependency in all its forms-from private as well as public interests-must beavoided if the judiciary is to receive the respect and support it requires to functioneffectively. Possessed of neither the purse nor the sword, it depends primarily onthe willingness of members of society to follow its mandates.' 4The problem is to find a proper method, and even more, a proper attitude, withwhich to resolve these sometimes conflicting goals into a code of ethics. One view,vigorously championed by Dean Acheson, would strictly prohibit judges from en-gaging in all but the most narrowly defined "legal" activities, and would enact thoseprohibitions into law.'5 Others, considering the task of drafting comprehensiveand useful prohibitions both extraordinarily difficult and highly unproductive, haveconcluded that "in seeking to achieve a rational course of ethical conduct, the answeris to be found only within the conscience of the judge."'6" See INTERIM REPORT t 1: "Judicial Duties. A judge's primary duty is to perform competently allthe duties of office imposed on him by constitution, statute, court rule, and the common law. All hisother activities are subordinate to his obligation to carry out his judicial duties." See also ABA CANON No.6: "Industry. A judge should exhibit an industry and application commensurate with the duties imposedupon him."is The Interim Report follows a tripartite division of spheres of judicial activity: judicial duties arethose required of a judge to perform the functions of his office; quasi-judicial activities assist in improvingthe law or judicial administration; and extra-judicial activities include civic, charitable, and other concerns.See note 12 supra; INTEmm REPORT 1-2. I shall follow this terminology."See Sobeloff, supra note 9, at 286."See Acheson, Removing the Shadow Cast on the Courts, 55 A.B.A.J. 99 (:969)." See Hastings, judicial Ethics as It Relates to Participation in Money-Making Activities, UzuvaRsrryor CHCAco LA W SCHOOL CONFERENCE ON JUDICIAL ETmCS 1 (1964).6 LAw AND CONTEMPORARY PROBLEMSMy own views incline more towards the latter, but with significant modificationsthat I suppose put me somewhere between both extremes. Some years ago, ChiefJustice Warren spoke at the Jewish Theological Seminary of America, and sug-gested that men in all walks of life could benefit from the services of a new profession,"counselors in ethics."'17 While it is unlikely that we will soon have a counselorappointed to assist each judge in resolving his ethical questions, still the concept is aprovocative one, for it suggests the usefulness of an outside voice in guiding a judge'simplementation of his own ethical precepts.' And that, I think, in a nutshell, iswhat a code of ethics should do. It must aim at prompting a dialogue betweena judge's own ethical sense and generally recognized communal moral standards.In most areas of judicial ethics, unless we accept the "jackal" view of the judiciaryand opt for wholesale prohibitions, we will be unable to draft rules sufficiently preciseto capture the variety of human endeavor, and to sift each instance of participationfor potential ethical problems. We will simply have to accept broad statements tothe effect that a judge's first obligation is to do justice to the litigant before him, andthat he should not divert "substantial" amounts of time to other activities; wecannot expect to spell out how many hours a day he must spend in one activity oranother.The concept of a code of ethics as an invitation to a dialogue between the con-science of a dedicated judge and communal standards is not, however, necessarily anexclusive one. As in the course of interpretation of the antitrust laws, where the"rule of reason" has given way to per se prohibitions in instances in which the harmis great and the benefit small,' 9 we may, without emulating the all-inclusive characterof a penal code, reasonably prohibit specific conduct. The aim is to create prophylacticrules in instances in which it is clear that the danger to the judiciary's reputation andperformance will outweigh any useful by-products2 The Interim Report, for ex-ample, not only continues the preexisting prohibitions against the practice of law,"1but extends the per se prohibition to arbitration, 2 nonfamily trusteeships, 23 andbusiness enterprises.' In each instance, the direction has been from general state--1 Remarks of Chief Justice Warren, Louis Marshall Award Dinner, Nov. xx, x962 (mimeographedcopy). For news reports, see N.Y. Times, Nov. x, 1962, at x, col. 3." Cf. Frankel, judicial Ethics and Discipline for the 1970s, 54 JUIJCATURE 18, 20 (1970), suggestingthe usefulness of outside review of a judge's decisions on ethics; Traynor, Is This Conflict Really Necessary?,37 TXAs L. REV. 657, 675 (1959): "[T]here is always a shortage of wise men.""9 See P. ARsEA, ANTITRUST ANALYSIS 303, 348 (1967)."In the similar context of congressional ethics, a recent study concluded that "Properly conceived,conflict-of-interest regulation does not condemn bad actions so much as it erects a system designed toprotect a decision-making process. It is preventive and prophylactic. Its aim is not detection and punish-ment of evil, but providing safeguards which lessen the risk of undesirable action." AssociAToN OF THnBAR OF THE CITY OF NEw YORK SPECIAL COMmITTEE ON CONGRESSIONAL ETHIcs, CONGRESS AND THE PUBLICTRUST 39 (,970)."1 ABA CANON No. 3x; INrTEum REPoar 9.sa INTEIm REPORT 9.5 5 Compare INERim' REPORT 4 with ABA CANON No. 27.=' Compare Irsuasm REPORT 6 with ABA CANON No. 25. The Judicial Conference of the UnitedLIONS OR JACKALS: Tim FUNCTION OF A CODE OF JUDICIAL ETHICS 7ments to highly specific conclusions.I should emphasize that formulation of per se rules is not only for the benefit oflitigants; judges too yearn for the safe harbor of a certain rule. What we mustrealize, however, is that increasing specificity and certainty do not necessarily connoteprogress; applied in a broadside and indiscriminate manner, specific rules and pro-hibitions could threaten the capacity of the judiciary to foster and maintain diverseactivities and interests. An area in which this stricture seems particularly applicableis that involving demands made on a judge's time by useful and important activitiesintended to promote judicial administration. One could take the position that sincejudicial tasks might be slighted, quasi-judicial and extra-judicial activities should beabandoned altogether, especially since drafting a specific rule permitting somequasi-judicial activities seems virtually impossible. Yet this would, I submit, be theworst of all possible worlds, for it would place a premium on judicial myopia in anage that incessantly demands more independence and more understanding to solvethe increasingly complex and sensitive issues our society leaves to be settled by litiga-tion. In addition, I fear such an approach would deprive the judicial reform movementof many of its ablest supporters.One can see somewhat similar problems in the financial area. If we are tocontinue to select judges from among leading members of the bar, some of themare bound to have acquired substantial financial interests. While it is reasonable andcompelling that they be asked to confine their investments to enterprises notoften likely to require disqualification,2 5 and to disqualify themselves when they dohave an "interest" in a controversy,26 complete divestiture, or complete disclosureof all assets (as opposed to earnings27 ), would cause some highly qualified individualsto pause before accepting judicial appointment.28 It is a simple, practical reflection ofour society that men possessed of stature, ability, and strong character will not in-States, at its September 17-18, x963, meeting, adopted the following resolution: "RESOLVED: No Justiceor judge appointed under the authority of the United States shall serve in the capacity of an officer, director,or employee of a corporation organized for profit."25 See ABA CANONS No. 26; Isrrimue REPoRT 6(b)."5See, e.g., 28 U.S.C. § 455 (1964); N.Y. JUDImcARY LAw art. 2, § 14 (McKinney 1968); ABA CANONNo. 29; INTEREm REPORT 8."TThe Interim Report requires, for the first time, that a judge publicly disclose all compensationreceived from outside activities. I,,rrElma REPORT 7- On June so, 1969, Chief Justice Earl Warren(as he then was) announced that the Judicial Conference of the United States had limited outside com-pensation to that approved by the judicial council of each circuit and made a matter of public record.In addition, each judge was to file a statement of his assets and income. The approval requirementwas suspended at the Oct. 31, 1969, session of the Judicial Conference, pending completion of the workof the ABA Committee on Standards of Judicial Conduct. However, an Interim Advisory Committee,appointed in December 1969 by Chief Justice Warren Burger, has continued to give advisory opinions onextra-judicial activities. At the March 16-17, 1970, session, the Conference approved a limited publicdisclosure of compensation and organizational positions held. A decision on further reporting of assets wasagain deferred pending revision of the Canons of Judicial Ethics by the ABA Committee."' The California Supreme Court, in City of Carmel-by-the-Sea v. Young, 2 Cal. 3 d 259, 466 P.2d225, 85 Cal. Rptr. 47 (970) (en banc), held that a California statute requiring public office holders(including judges) to file annual statements of investments, was an overbroad invasion of the right ofprivacy, and therefore unconstitutional.LAW AND CONTEMPORARY PROBLEMSfrequently prosper financially. It will not do to discourage such men from aspiringto the bench. And given what I believe is the universal desire of judges I haveknown to avoid even the suspicion of a conflict of interest, I believe the benefit to begained by disclosure or divestiture small in relation to the likely harm caused thejudiciary by implementing either course. We would be placing the judiciary in thedangerous position of perhaps saving its honor at the expense of its independence.And the benefits, I should think, would be minimal. Whatever corrupt judges mayexist would file misleading reports. We would probably create a yearly flurry in thepopular press over particular judges, permitting the bar and the public the unusualpleasure of seeing courthouse gossip spread across the pages of the daily paper.The better course, to my mind, is to continue to choose good men, provide themwith a body of ethical standards to which they may repair and then, in all but theobvious cases where per se treatment is justified, trust to the character of those wehave selected. I find myself in substantial agreement with Judge Edwards that themembers of the judiciary with whom I have come into contact in more than twentyyears on the bench are, on the whole, a sober and honest group, far removed fromthe "jackals" at whom procrustean limitations are usually directed29 I would suggestthat it is more in keeping with the genius of our judicial tradition to continue to treatour judges as "lions," and to expect them to submit more readily to ethical dialogues.There are times when we need men who can feel and understand what goes on inthe world about them; we shall not find such men in a gray "bureaucracy" divorcedfrom all outside activities and interests." And there are times, I might add, when weneed men who are not afraid to roar should the occasion demand it."' Edwards, Commentary on Judicial Ethics, 38 FoRarHA L. Rv. 259, 26r (x969). See also Rifkind,A Judge's Nonjudicial Behavior, 38 N.Y.S.B.J. 22 (1965); NV. NVEYRAuCH, PRsoNALITrY oi LAwyaaRs: ACOMPARATIVE STUDY OF SUt7ECTIVF FACTORS IN LAW, BASED ON INTERViEWS WiTH GERMAN LAwynas(1964)."0 Edwards, supra note 29, at 275.

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Lions or Jackals: The Function of a Code of Judicial Ethics

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