JURIST Guest Columnist Keith J. Bybee of Syracuse University says in order for both state and federal judges to retain legitimacy, it is not enough for them to merely avoid actual improprieties; they must also visibly appear to play the role of impartial arbiter to sustain public support...
udges around the country have been struggling with their appearances lately.
In Washington, D.C., Federal District Court Judge G. Thomas Porteous is urging everyone to get beyond looks. Porteous is mired in an impeachment hearing in the United States Senate. He landed in this dire position because he amassed large gambling debts, accepted unseemly gifts from lawyers (including envelopes stuffed with cash), and filed for bankruptcy under an assumed name. Although these actions hardly cast Porteous in a favorable light, the judge's defense team has argued that Porteous should not be thrown off the bench simply because of how things might seem. "This is about an appearance of impropriety," Porteous' lawyer said, "and we think it is a mistake to remove judges based on that standard."
In West Virginia, Supreme Court Justice Menis Ketchum is also finding image management to be a bit tricky. When running for a spot on the bench in 2008, Ketchum assured voters that he would not invalidate or modify the state statute placing caps on punitive damages in medical malpractice suits. Now, with a case challenging the constitutionality of the caps before his court, Ketchum is insisting that he is impartial. True, his campaign promises make it look like he made up his mind about limits on damages years ago. The trouble is, according to Ketchum, the appearance of pre‐judgment doesn't accurately reflect new realities. As a sitting judge, Ketchum stated, "I am required to look at all issues from a different perspective than I enjoyed as Lawyer Ketchum." When this position elicited criticism, Ketchum reversed field and decided to recuse himself from the case after all, arguing that the problem wasn't the appearance of his pre‐judgment, but the reality of the media's bias. "I could care less if the blogs or press crucify me personally," Ketchum wrote. "However, I believe the lawyers are pulling the press's strings to place our Court in an unfavorable light."
The specific situations in which Porteous and Ketchum find themselves are in some ways unusual. Yet their problems with appearances are hardly unique.
Public opinion polls stretching back to the late 1980s demonstrate that large majorities of Americans believe the decision making of state judges is influenced by political considerations. Other surveys indicate that a significant majority believe federal judges hand down decisions mirroring the judges' own political leanings. And when it comes to the nation's highest bench, polls show that a large portion of the public believes the Supreme Court operates with too little regard for either legal principles or impartiality, with near majorities believing that the justices are too mixed up in politics.
Of course, the poll results do not prove that any given judge is actually making decisions on the basis of political preference rather than on the basis of legal arguments and facts. The perception of political decision making nonetheless matters.
Judicial legitimacy depends on the ability of judges to convey the impression that their actions are driven by the impersonal requirements of law. It is not enough merely to avoid actual improprieties; judges must also visibly appear to play the role of impartial arbiter to sustain public support. The widespread political assessment of the courts suggests that many Americans are skeptical about judicial decisions and suspect that all the judicial talk about legal principle is a fig leaf designed to obscure partisan purposes.
Judicial appearances are indeed fleeting and they may surely mislead. But the question of how the judicial process may endure when it seems to be infected with politics deserves serious attention - no matter how strenuously some judges may argue that we shouldn't care about how things look.
Keith J. Bybee teaches law and political science at Syracuse University and is author of the 2010 book All Judges Are Political - Except When They Are Not: Acceptable Hypocrisies and the Rule of Law.
Suggested citation: Keith J. Bybee, Judicial Ethics: Appearances Still Matter, JURIST - Forum, Oct. 18, 2010, http://jurist.org/forum/2010/10/judicial-ethics-appearances-still-matter.php.