Bench Memos

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Re: Justice O’Connor’s One A.M. Robo-calls in Support of Ballot Initiative


My post yesterday calling into question the ethical propriety of Justice O’Connor’s robo-calls and videos in support of a Nevada ballot initiative on judicial selection has drawn attention from the New York Times and the Washington Post (final item in this column). I’m particularly struck and amused by this passage in the Times piece:

Stephen Gillers, a professor of legal ethics at the New York University School of Law, disagreed [with Whelan], saying that the country’s codes of judicial ethics clearly allowed judges to advocate on behalf of such issues.

Justice O’Connor is not officially covered by a code of conduct, Mr. Gillers said. But even if she were, Mr. Gillers said Justice O’Connor should feel free to do what she was doing.

“I think the robo-calls solely on the issue of a ballot measure falls within the canon [Canon 4] that permits speaking and other activities on the law, the legal system and the administration of justice,” Mr. Gillers said.

“It is a difference in degree,” he said. “It’s unusual for a retired justice to do this, obviously. It’s the campaign she’s been waging all along. Whether she does it in a robo-call or in a speech is all part of a piece.”

I’ve commented before on the curious pattern of Gillers’s supposedly expert ethics advice. For present purposes, I’ll limit myself to two observations:

First, while Gillers is correct that the Code of Conduct for United States Judges doesn’t formally apply to Supreme Court justices (including “retired” justices who continue to serve on lower courts), its general canons are widely understood to set forth principles of proper conduct against which the actions of justices can be measured. (I don’t mean to suggest that Gillers would dispute this point, but rather only that he obscures it.)

Second, Gillers’s reading of the interplay of Canons 4 and 5 (which I briefly discussed in my previous post) strikes me as highly dubious, and I don’t see how he can contend (as the article fairly summarizes his assertions) that the canons “clearly allowed” O’Connor’s campaign activity.

The overarching rule in Canon 5 is: “A judge should refrain from political activity.” Canon 5C, in repeating that rule, states: “This provision does not prevent a judge from engaging in activities described in Canon 4.”

Canon 4 generally provides: “A judge may engage in extrajudicial activities that are consistent with the obligations of judicial office.” It specifically provides, however, that “a judge should not participate in extrajudicial activities that detract from the dignity of the judge’s office.” Canon 4A(1) states that a judge “may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice.” Canon 4A(2)(a) states that a judge “may consult with or appear at a public hearing before an executive or legislative body or official … on matters concerning the law, the legal system, or the administration of justice.”

Gillers’s position is that Canon 4A(1), because it allows a judge to “speak … and participate in other activities concerning the law, the legal system, and the administration of justice,” must be read to allow O’Connor’s robo-calls and videos in support of Nevada’s Question 1. But if Canon 4A(1) were to be read so expansively, there would be no need for Canon 4A(2)(a) to address a judge’s “consult[ing] with or appear[ing] at a public hearing before an executive or legislative body or official,” since that also involves speaking or participation. It would seem far more sensible to read Canon 4A(1) as addressed only to actions (“speak, write, lecture, teach”) consistent with the “dignity of the judge’s office” (to quote from Canon 4’s general introductory language). In other words, there’s a difference in kind, and not just what Gillers calls a “difference in degree,” between the activities contemplated by Canon 4A(1) and O’Connor’s crass politicking.

But don’t take my word for it. Let’s look at what the Committee on Codes of Conduct, charged with advising on the meaning of the ethics rules, has said about the interplay between Canon 4 and Canon 5. Advisory Opinion No. 93 (available here) issued by the Committee on Codes of Conduct states (emphasis added):

[E]ngaging in law-related extrajudicial activities where the activity is political in nature is fraught with risks for judges.… A judge should be sensitive to the nature and tone of the activity, and should not be drawn into an activity in a manner that would contravene Canon 2’s goals of propriety and impartiality or Canon 5A’s prohibition of activities pertaining to political organizations or candidates.  Further, because of the ethical risks associated with any politically-oriented activity, we construe permissible Canon 4 activities in this context narrowly, restricted to those activities that are most directly related to the law and legal process.

I think that it’s fair to say that campaign robo-calls, whether at 1 a.m. or at 1 p.m., don’t quite have the “nature and tone” that we’re entitled to expect from federal judges and wouldn’t fall within a narrow construction of what Canon 4 allows.*

* I acknowledge that the committee’s specific statement about construing Canon 4 activities “narrowly” relates to a restriction to “those activities that are most directly related to the law and legal process”—something that O’Connor’s defenders would contend described the subject matter of Nevada’s Question 1—but I think that the thrust of the advisory opinion is generally to construe narrowly the Canon 4 exception to Canon 5’s bar on political activity.


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