Bench Memos

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Sur-reply to Franck


First, it is important to note that the code is not merely “written by judges to guide judges” as Matt suggests. Rather, as the Code’s official commentaries state, “[t]he Code is designed to provide guidance to judges and nominees for judicial office.” (emphasis added). This is a subtle but important distinction for our present inquiry. While Matt is correct in stating that the code isn’t the “law of the land”–to which I would add that the Code does not carry civil or criminal penalties–the code nonetheless provides standards for conduct which can be and are applied in judicial disciplinary proceedings brought under the U.S. Code, which is the law of the land. It is therefore not surprising that while Canon 3 at issue speaks in aspirational “should” terms, the comments consistently refer to those “shoulds” as “duties.” In this case, the should/shall distinction doesn’t give much leeway to the nominee, because the entire code is written in terms of should, but behind those “shoulds” is a hammer of disciplinary enforcement. See, e.g., McBryde v. Committee to Review Circuit Council Conduct and Disability Orders of the Judicial Conference of the United States, 83 F. Supp. 2d 135 (D.D.C. 1999), aff’d in part and vacated in part on other grounds, 264 F.3d 52 (D.C.Cir. 2001), in which the judicial council imposed discipline on a judge for violations of Canon 2(A) and 3(A)(3), both of which use the aspirational should.

Of course, this does not even reach the recusal statutes, or, to my mind, the equally important prudential reasons against speaking about how you would handle cases which are likely to come before you.


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