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Some Observations on
International Judicial Ethics
Keith R. Fisher
National Center for State Courts,
Arlington, Virginia
International Conference on
Court Excellence
Singapore, January 28-29, 2016
Ethics Topics of Universal Applicability
Judicial Independence
Impartiality Permissible Outside Activities
Retained Rights Accountability
Public Confidence Disciplinary Action
Recusal/Disqualification
Judicial Independence
“Independence” here means independence from influence from other government branches, not independence from applicable laws and precedents Independence should be guaranteed by the state Does not mandate absolute neutrality: Judges cannot
ignore their personal backgrounds, nor do we want them to.
Freedom from extraneous influences, inducements, pressures, threats, or interference Preserving professional detachment and independence
from colleagues Deciding matters with an open mind
Impartiality
“Impartiality” is different from “Independence”
Independence focuses on extrinsic forms of influence
Impartiality focuses on internal predispositions
Impartiality – not only actual impartiality but, equally important, the appearance of impartiality -- precludes any personal bias, prejudice, or preconceptions with respect to
The matter in dispute
The parties before the court
The advocates
The parties’ legal positions.
Judges should avoid ex parte communications and independent research into matters of fact or mixed questions of fact and law
Judges should avoid conflicts of interest and any activity that may cause their independence or impartiality legitimately to be called into doubt, e.g.,
ECJ Code of Conduct Art. 3
Eur. Ct. Hum. Rts. R. 28.2
ICC Code of Judicial Ethics Art. 4.2
ABA Model Code of Judicial Conduct Canon 2
Remedy is typically recusal/disqualification. Public confidence is enhanced by voluntary recusal.
Reliably assess one’s own impartiality?
Problems of cognition
Implicit bias
Imperfections in human perception
Emerging area of research in legal ethics
(behavioral ethics)
Permissible Outside Activities This is a corollary to the principle of “Impartiality.”
Judges must be cautious to minimize the risk of conflict with the obligations of judicial office and with the appearances created by affiliation with certain organizations/groups
May judges collect fees for Lecturing/teaching?
Writing about professional experiences?
Acting as an arbitrator?
Should judges be allowed to write in detail about particular cases While still on the bench but after the case is finally decided?
Only after retirement or resignation?
Not at all?
While still on the bench, may judges be active In publishing scholarly work?
On editorial boards of professional legal journals?
On advisory boards of not-for-profit organizations?
On boards of commercial enterprises?
Retained Rights Judges remain human beings and do not, upon taking the bench,
completely relinquish fundamental human rights or civil rights
Nevertheless some restrictions on those rights come with the job where exercise of those rights may Interfere with proper performance of the judicial function or cause
frequent disqualification Appear to a reasonable person to undermine the judge’s
independence, impartiality, or integrity
Key question is the extent of permissible restrictions on fundamental rights Freedom of expression? Political freedoms? Special cases of judges who must run for election?
Williams-Yulee v. Florida Bar
135 S.Ct. 1656 (2015)
Personal solicitation clause
“A judge or a judicial candidate shall not personally
solicit or accept campaign contributions other than
through a campaign committee”
Held unconstitutional in 4 states
Upheld in 4 other states
According to the ABA, 30 of 39 states with
judicial elections have similar provision
Rancorous dissents
“Neither the Court nor the State identifies the
slightest evidence that banning requests for
contributions will substantially improve public
trust in judges.” Justice Antonin Scalia
“This rule is about as narrowly tailored as a
burlap bag.” Justice Samuel Alito
Accountability
Do judges have a clear understanding of their professional and ethical obligations as members of a court?
Accountable to whom (or what)?
Their peers? (Concurring or dissenting opinions)
Their consciences?
Academic criticism of decisions?
NGOs and judicial monitoring organizations?
Victims, witnesses, and other participants in proceedings?
The media?
How are judges of the court evaluated?
Does the court publicize how the judges vote?
Are judges same from governmental retaliation based on decisions?
Is the court subject to external evaluation?
Public Confidence
Maintaining public confidence in the judiciary in a democracy
is the only way, short of military force, to ensure that
judgments of the court are respected and obeyed
“John Marshall has made his decision. Now let him enforce
it.” - Andrew Jackson (1832)
Cf. “How many divisions does the Pope have?” – Josef Stalin
Bush v. Gore (2000)
Disciplinary Action Does the court have mechanisms to deal with serious judicial
misconduct? Do applicable statutes, codes, or rules clearly explicate what constitutes a
serious violation? Are the consequences of serious violations clearly spelled out? Is removal
the only sanction or is there an appropriate range of disciplinary measures (e.g., disqualification from particular cases or categories of cases)?
Is the removal process subject to political influence?
What about less serious instances of misconduct? Do applicable statutes, codes, or rules clearly explicate what constitutes less
serious misconduct? Are the consequences clearly spelled out? Is there an appropriate range of disciplinary procedures to respond to less
serious misconduct? Who has the responsibility for making disciplinary decisions? The President
of the court/chief judge? A jury of the alleged offender’s peers? An independent commission? The court of last resort? A political body?
Recusal/Disqualification
Where a judge’s impartiality might reasonably be questioned
Recall problems of perception and cognition
Can participation in deliberations of a multi-member court
by a judge who may not be impartial taint the entire process?
Questions of collegiality
Does it matter whether the decision is unanimous?
