01/04/2013 02:38 pm ET Updated Mar 06, 2013

Judging Judges: When Appearance Matters

When Jethro famously told his son-in-law Moses, the greatest judge in history, that he needed to create a regime of judges -- that for him to alone judge every controversy among the Israelites, however insignificant, would burden him too greatly -- neither Jethro, nor Moses, nor even God Himself set forth protocols on precisely how judges should judge. Or, indeed, how they should be judged.

Yes, of course, the Bible instructed judges to judge without favor. To be men -- surely, it should have read "people" -- of righteous judgment. Men of accomplishment. Men of truth. Men who despised money. Men who wouldn't accept bribes. Men who wouldn't side with a litigant simply because of who he is -- meaning, judges who wouldn't favor even a poor man over a rich man, but instead would decide each controversy solely on its merits. Men who wouldn't yield to the views of their outnumbering confreres, if they believed that their own view of the controversy was the righteous one. Important foundations to judging! (Not to mention, God-fearing men -- after all, this was a theocratic state).

Still, nuance wasn't addressed. Nothing about "appearance." No instruction against ex parte contacts. Nothing about a judge's excessive informality. No injunction against inappropriate demeanor when ruling on cases, or in a judge's personal life. No proscription about when a judge must inarguably disqualify himself. Or the need to disqualify himself when merely sitting on a particular case might compromise, even undermine, the very "appearance" that justice was being served.

The law and rules of judging were rudimentary, draconian, sometimes even seemingly barbaric -- occasionally directing the literal trial by ordeal. Given the brand of rough justice that was imposable for certain offenses that might not even be crimes today, why, indeed, would one struggle over whether the judge may have seemed less-than-circumspect in how the justice he meted out might have "appeared" to his contemporaries?

We have traveled far from Sinai, both in place and time. Judicial conduct is now not only reviewed and confronted by a vast appellate regime and an aggressive press (and blogger) corps, but also by a discipline process in place in every jurisdiction, tasked with applying tediously codified rules of judicial conduct and exacting opinions to assess the conduct of judges. Not to mention an inquiring electorate that scrutinizes elected judges who must stand for reelection, and potentially penalizes presidents, governors or mayors who appointed unqualified judges and later find themselves up for reelection.

Thus, for a judge (or would-be judge) nowadays to merely read the Bible for guidance as to how he or she must judge in an ethical manner is only a good start. (S)he must also study other "bibles" -- there is far too much ambiguity in judging nowadays for a judge to take solace in merely following the black letter law of Scripture. And, this applies to judges of whatever station -- no matter how lofty, or lowly -- and whether or not they were formally trained as lawyers (recognizing the reality that an extraordinarily high percentage of judges around the country are not required to be or are lawyers.)

One, of course, might incipiently expect that lower court or unschooled judges more likely engage in ethically-flawed conduct as judges. In reality, however, critics of the judiciary primarily look for instances of judicial misconduct -- ethical lapses, alleged ethical lapses or questionable practices -- that are committed by higher court judges.

Famously, for example, Chief Justice William Rehnquist participated in a monthly poker game for 20 years with friends including well-known Washington lawyer, Robert Bennett, reportedly until Bennett represented President Clinton in asking the Supreme Court to interdict the Paula Jones lawsuit during the remaining pendency of the Clinton presidency. Justice Clarence Thomas, in some circles, has been widely excoriated for sitting on matters on which The Heritage Foundation, the conservative think tank that employed his wife, has typically engaged in strident public advocacy. Justice Stephen Breyer, reportedly steeled in his resolve by an ethics opinion he privately commissioned, sat on the principal cases that challenged the constitutionality of the federal sentencing statute of which he was a principal draftsman. And Justice Antonin Scalia, amid considerable controversy, given that Vice President Cheney had invited Scalia to accompany him on Air Force Two for a duck hunting trip, enlisted his own "non-recusal" opinion, when he decided to sit on a case involving alleged improprieties of the Energy Task Force headed by Cheney.

Would it have mattered to the public even if it turned out, in the individual case, that the Justice voted opposite the side that he might seem to have favored going into the case? Bear in mind, none of these instances suggested that the Justice decided as he did because he was bribed to do so, or that he sided with a litigant to whom he was related even by an insignificant degree of consanguinity. It is simply because one might argue -- reasonably so -- that the mere "appearance" of a justice sitting on the case (even though he exercised only one vote) was in issue: that it would "look bad," or that in the unassuming words of the federal disqualification statute, "his impartiality might reasonably be questioned."

What does it say that we privately tend to believe that lower court -- perhaps even non-lawyer, lower court -- judges, with whom we typically more directly interact, more frequently defy ethical constraints, whereas serious questions have indeed been raised about life-tenured Supreme Court Justices who have declined to disqualify themselves despite at least arguable conflicts -- some that might theoretically even have warranted discipline inquiry? Consider how Justice Felix Frankfurter reportedly continued to give private counsel to a sitting president, Franklin D. Roosevelt, after his appointment, as did Justice Abe Fortas after he was appointed by President Lyndon B. Johnson. Again, what would that have looked like -- what would have been the "appearance," especially to litigants against whom these Justices voted -- if the public had known it at the time? Appearance is, indeed, reality!

Does it mean that a judge, no matter how lofty his or her station, is capable of ethical lapses? Sure. Does it mean that all judges, no matter how high up the ladder, need frequent training on the ethics that apply to judging? Sure. Does it mean that the higher the judge's station -- the more sophisticated he is -- the better able he is to fend off criticism through superior lawyering executed on his behalf? Maybe.

Even though we tend to know more about higher court judges when ethical controversy grips them, judges at lower rungs on the ladder are obviously the subject of higher numbers of ethics complaints. It is almost akin to the public knowing more about airplane crashes than automobile accidents, even though conventional wisdom advises that airplanes are presumptively the safer way to travel.

It tells us this -- all judges must be vigilant in how they practice their craft. No matter who the litigant, that litigant must reasonably receive -- and be given adequate reason to believe that he is receiving -- fair and equal justice. Nothing less is tolerable, and that is what appearance of impropriety is really about. We will never know if a judge, any judge, is deciding his cases based on a flip of a coin at midnight in his darkened chambers or on a fog shrouded street corner. There is just so much that Society can do to ensure the quality of judging it receives. Accordingly, concentrating on the training that the system requires of judges, and the way it scrutinizes their conduct with transparency, is pivotal.

We can, indeed, affect what happens in public. To reduce it almost to the banal by examples, if a judge informally calls a litigant's lawyer by his last name and his opponent's by his first, then no matter how correct the judge's ruling and likelihood that any other judge would have ruled the same way, when that litigant loses, he will conclude that he has been denied justice. Or the same if the judge appears too friendly to his opponent, or is indiscreet or dismissive to his side. Just imagine, though, if it turns out that the judge continues to be a poker buddy of one of the lawyers simultaneous with his presiding over a hotly contested case; if his wife, if only in her blog, has advocated one side's legal position; if the judge, as a legislator or commissioner actually wrote the law being challenged by the case; or the judge has been treated to a fishing trip by one of the parties. We can all learn from on high!

Appearance always matters, and all judges -- just as all lawyers -- must unendingly look in the books, as well as in the mirror. Clearly, lower court judges decide far more cases, and alone. They are, thus, far more vulnerable to appearance issues, even though the alleged improprieties of higher court judges are far more noticeable.

If he were alive today -- What Would Moses Do? One suspects, as did Justice Benjamin Cardozo in considering the ethics of the fiduciary, he would insist, in the same words or others that make the same point, that the judge must adhere to "the punctilio of an honor the most sacred." Given such a luminous standard, and assuming that the judges Moses would appoint would be men (and, one hopes, women) of honor and truth, would we really require ethics rules, court decisions, and press coverage to interpret that standard? Aren't some things pristinely clear?

And if not, although an uneasy standard to articulate, maybe it should be this: the commitment of every judge to daily look in the mirror and imagine that he was the losing party in the case that he (as a judge) decided the day before -- introspectively recognizing the "appearance" baggage that he had brought to the bench before and in reaching his decision.

Or, more directly: "Knowing what you know -- what does the justice you meted out yesterday look like?"