Bench Memos

Judge Silberman on Justice O’Connor’s Ethics Violations

In a speech three weeks ago to the San Francisco lawyers chapter of the Federalist Society, D.C. Circuit senior judge Laurence Silberman addressed “phony concerns and real concerns” about judicial ethics. In remarks broadly consistent with my own critique (offered in various posts that are hyperlinked in the first sentence here), Silberman shredded the phony ethical lapses alleged against Justices Scalia and Thomas.

Disclosing some interesting new information, Silberman then highlighted the “real ethical concern” raised by Justice O’Connor’s “campaign against state court elections.” (As Silberman notes, O’Connor, following her retirement from the Court, “continues to sit on the courts of appeal.”) Some excerpts (emphasis added):

I’m afraid I’ll be critical of [Justice O’Connor’s] activities but I want to assure you it is not personal. I have been a friend for almost 30 years. I’ve known and liked her and the goal she seeks, judicial independence, is one at least involving federal judges that I, too, have focused on for years.…

Recently, Justice O’Connor became enmeshed in two imbroglios arising out of her campaign [against state judicial elections]. One involved robocalls, using her voice in opposition to a Nevada referendum on judicial election. And the other was her participation in a conference in Iowa opposing judicial elections. The conference was held at the very time a vote loomed of whether to retain three Iowa supreme court justices who had joined a unanimous opinion holding gay marriage protected by the Iowa constitution.

Although she applauded the part of the Iowa law providing for appointment of judges, she implicitly criticized the companion provisions requiring a retention vote and rather directly appealed to Iowa voters not to punish judges when they disagree with judges’ decision, which was taken rather obviously as a political position on that retention election.

Apparently, it has been widely discussed within the federal judiciary, although I doubt it has become public, Justice O’Connor asked other federal judges in Iowa to attend the event. One judge, it may have been the chief district judge, presumably uncomfortable with the circumstances, inquired of the committee of the federal judicial conference that examines ethical issues and provides opinions to judges. It is also widely known, although I don’t know if it’s public yet, that the committee opined that it would be improper for federal judges to attend the event because of its political nature.

Although the rally was ostensibly directed against full judicial elections, it could not help but be interpreted as support for the embattled Iowa supreme court justices.

Justice O’Connor was apparently quite upset at the committee’s opinion. Nevertheless, the district judges did not attend. Justice O’Connor did. [Silberman notes that Supreme Court justices—including, it would seem, former justices sitting on lower courts—are “not technically covered by the ethical canons that apply to all other federal judges.”] …

It is my view that, without regard to the particularly hot political context in Iowa or the campaign in Nevada, the issue of whether state court judges should be chosen or ratified by election, or chosen solely by appointment, is a political issue on which serving federal judges should not take a position publicly one way or the other. That is a real ethical issue, unlike the phony ones I discussed earlier.

So, by Silberman’s account, O’Connor not only engaged in unethical politicking, but she did so against the advice given by the Committee on Codes of Conduct.

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