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56 Ct. Rev. 144 (2020)
Ethical Judicial Culture

handle is hein.journals/ctrev56 and id is 144 raw text is: CANON CONVERSATIONS - A COURT REVIEW COLUMN Ethical Judicial Culture Cynthia Gray e problems that roil society affect the judiciary Most recently, an uncontained virus challenged courts to perform their duties remotely for a time and then safely when they reopened. The #MeToo movement forced judicial systems to reckon with their past negligence and adopt reforms to do better in the future. And the racial justice movement of 2020 prompted commitments from state courts to, for example, look afresh at what we are doing, or failing to do, to root out any conscious and unconscious bias in our courtrooms; to ensure that the justice provided to African-Americans is the same that is provided to white Americans; to create in our courtrooms, our corner of the world, a place where all are truly equal.i Individual judges willing to take up the challenge of justice movements must remember the ethical restrictions that require both impartiality and the appearance of impartiality to protect the judiciary's credibility For example, judicial ethics committees have warned judges not to delegate the judiciary's message to others by joining the millions demonstrating about numerous causes across the country Judges have been advised not to take part even in such legal community events as A Silent March of Black Female Attorneys of Connecticut2 or a bar association's silent walk for justice.3 Advisory opinions that do not prohibit marching outright condition participation on a daunting list of criteria.4 The general public can protest and declare their view of a just result in a case without waiting for proof beyond a reason- able doubt. In contrast, judges cannot risk the neutrality that gives the public confidence in their ability to preside with an open mind over those contentious cases. PROFESSIONAL WORKPLACE Although systemic issues of bias must be broadly remedied by the courts, the enforcement of the strong judicial ethics canons already in place can address specific, frequently high-profile inci- dents of sexual misconduct or racist behavior. Rule 2.3(B) of the 2007 American Bar Association Model Code of Judicial Conduct provides: A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge's direction and control to do so.5 Recent examples of sanctions under this rule are as follows: - A judge who asked a sexual assault victim, Close your legs? Call the police? Did you do any of those things?6 - A judge who told an assistant district attorney, I don't care what anybody wears, Ms. McKeegan, if you wear yoga pants to court, it's okay with me.7 - A judge who told two female assistant district attorneys in the hallway, I have the biggest balls in the courthouse.8 - A judge who gave a female judge and four female court staff a Gag Order, Esquire patch.9 - A judge who said during a domestic violence case, On a lighter note, I can take judicial notice that women can drive you crazyiO Footnotes 1. Letter from the Seven Justices of the Massachusetts Supreme Judicial Court to Members of the Judiciary and the Bar (June 3, 2020) (https://www.mass. gov/news/letter-from-the-seven-justices-of-the- supreme-judicial-court-to-members-of-the-judiciary-and). The National Center for State Courts has collected statements on racial justice made in 2020 by court leaders and courts on its website at https://www.ncsc. org/newsroom/state-court-statements-on-racial- justice. 2. Connecticut Informal Opinion 2020-3 (https://jud.ct.gov/Commit- tees/ethics/sum/2020-03 .pdf) . 3. New York Advisory Opinions 2020-92/93 (https://www.nycourts.gov/ legacyhtm/ip/judicialethics/opinions/20-92_20-93.htm). 4. The Center for Judicial Ethics has summaries of judicial ethics opin- ion on judges' and court staff participating in demonstrations and other issue-related community events on its website at https://www.ncsc.org/_data/assets/pdf file/0027/42588/JudicialPar- ticipationinMarches.pdf 5. See https://www.americanbar.org/groups/professionalresponsibil- ity/publications/modelcodeof judicialconduct/model_code_of ju dicial_conduct_canon_2/rule2_3biasprejudiceandharassment/. Most jurisdictions have adopted a version of this rule. 6. In the Matter of Russo, 231 A.3d 563 (New Jersey 2020) (removal for this and other misconduct). 7. In the Matter of Gerber, Determination (New York State Commission on Judicial Conduct June 27, 2020) (http://cjc.ny.gov/Determina- tions/G/Gerber.Howard. 2020.06.17.DET.pdf) (admonition for this and other misconduct). 8. Inquiry Concerning Bennett, Decision and Order (California Commis- sion on Judicial Performance March 25, 2020) (https://cjp.ca.gov/wp- content/uploads/sites/40/2020/03/ Bennett_Censure_3-25-20.pdf) (censure for this and other misconduct). 9. In the Matter of Potter, Stipulation and Order of Consent to Public Admonishment (Nevada Commission on Judicial Discipline Septem- ber 30, 2020) (http://judicial.nv.gov/uploadedFiles/judicialnvgov/ content/Discipline/Dicisions/2020_09_30_CaseNo2019-182-P pd. 10. Inquiry Concerning Laettner, Decision and Order (California Com- mission on Judicial Performance November 6, 2019) (https://cjp.ca.gov/wp-content/uploads/sites/40/20 19/11/ Laettner_DO_Removal_11-06-19.pdD (removal for this and other misconduct). 144 Court Review - Volume 56

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