Partiality, Public Comment, Incivility and Disqualification: Protecting Due Process in the Wake of a Changing Judiciary
By Sharisse O’Carroll

“Justice…is said to be blind; and this is true, and should be true in one regard…that she is blind to the parties, as they stand before her.” — Whitehouse v. Travelers’ Ins. Co., 29 F. Cas. 1038, 1039 (D.N.H. 1877).

“Power does not corrupt men; but fools, if they get into a position of power, corrupt power.” — George Bernard Shaw

INTRODUCTION

A judge’s role is to be a fair and impartial arbitrator of society’s conflicts, beholden only to the law, not public opinion. Yet, as with any occupational group, judges want to be well regarded by the rest of the community. According to recent studies, however, public confidence in the judiciary is in a disturbing state of decline.1 In 1999, a national survey by the National Center for State Courts found that public trust and confidence in state courts lagged behind confidence ratings of other institutions. The survey also found that 81 percent of respondents believed “politics influence judges in their decisions,” 80 percent believed “wealthy persons receive better treatment from the courts than do others,” and nearly 50 percent believed “minorities and persons who do not speak English receive worse treatment from the courts.” 2 In a poll sponsored by the American Bar Association, only 32 percent of those responding said they were extremely confident or very confident in judges.3

In spite of these troubling statistics, most bar associations have developed standards of professionalism for attorneys but have overlooked a similar need for judges.4 Recently, a few organizations have examined the reasons for dissatisfaction with the judiciary, amidst concerns that such judicial scrutiny and criticism threatens judicial independence.5 Criticism directed at unpopular judicial decisions does threaten judicial independence when it becomes an attempt to influence the appropriate exercise of judicial discretion. However, criticism directed at improper judicial temperament or behavior can serve a vital corrective function and should be encouraged. 6 The independence of the judiciary is not threatened by enforcing standards of impartiality, dignity and respect for others. In order to restore public confidence in the American judiciary, the judiciary has an obligation to behave ethically both off and on the bench, and it is the responsibility of the bar to ensure this occurs. This article addresses two aspects of judicial behavior that have attracted considerable criticism recently — public comment off the bench and incivility on the bench.

APPEARANCE OF PARTIALITY

“A judge should respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” 7

“A fair trial in a fair tribunal is a basic requirement of due process. . . Justice must satisfy the appearance of justice.”

- In re Murchison, 349 U.S. 133 (1955).

Judges can be a threat to their own independence if they appear to be swayed by public interests rather than constrained to decide cases and issues according to law. An impartial judge is essential in our adversary system and disqualification is mandated under the due process clause of the Constitution if this essentiality is lacking.8 Public confidence in judicial independence can be shattered when a judge’s words or actions impair the appearance of fairness, especially during periods of intense political polarization.9 In this regard, the decline in the public’s confidence in the judiciary might be traced back to 1972 when Justice Rehnquist refused to disqualify himself in the case of Laird v. Tatum.

In the Laird case, civil rights and anti-Vietnam War activists filed a lawsuit accusing the Department of Army of conducting secret, unlawful surveillance of citizens who were engaged in constitutionally-protected protests. While the appeal was pending, William Rehnquist, then assistant attorney general for the Justice Department, testified before Congress as an expert witness for the government and claimed that the surveillance was constitutional and the plaintiffs’ case was not justiciable.10 He also testified that the Army’s surveillance activities had stopped when in fact he had developed the action plan which kept it going.11

The United States Supreme Court heard the Laird case the following year. Newly appointed Justice Rehnquist refused to disqualify himself from participating in the decision. He wrote a lengthy memorandum in which he characterized his Senate testimony as merely a public statement of his opinion on a matter of law, although he conceded that “fair minded judges might disagree.” 12 Rehnquist justified his position of “not bending over backwards” to disqualify himself by suggesting that if a United States Supreme Court Justice disqualified, the result might be the affirmation of a lower court decision, leaving the law “unsettled.” 13 He then cast the deciding vote in the 5-4 decision against the plaintiffs. When nominated for promotion to chief justice in 1986, Rehnquist was severely criticized for failing to disqualify himself in Laird.14

DISQUALIFICATION

“A judge should disqualify…in a proceeding in which the judge’s impartiality might reasonably be questioned including but not limited to instances where…the judge has a personal bias or prejudice concerning a party or a party’s lawyer ….” 15

In response to Laird, Congress revised the federal judicial statute in accord with the ABA Model Judicial Code and state jurisdictions, requiring all judicial grounds for disqualification be evaluated on an objective basis so that what matters is not the reality of bias, but its appearance.16 Disqualification is mandatory for conduct that calls a judge’s impartiality into question.17 The standard is the appearance of possible bias or prejudice, not the reality of bias or prejudice. The judge’s actual “state of mind, purity of heart, incorruptibility or lack of partiality are not the issue.” 18 Several circuits have held that if the question of disqualification is a close one, the balance tips in favor of recusal.19 Although disqualification is not warranted based only upon a judge’s unfavorable rulings or unfavorable opinions formed from observations in the course of the proceedings, a judge’s point of view can constitute “bias or prejudice” if it displays “a deep-seated favoritism or antagonism that would make a fair judgment impossible.” 20

The appearance of impropriety is not from the perspective of the judge whose continued control of the case is at issue. Rather, the objective observer’s reasonable question of the judge’s neutrality is determinative. If there is an appearance of impartiality, that ends the matter, regardless of the judge’s own belief of actual bias, and disqualification is required to restore due process.21 Attorneys who use professional care and circumspection in exercising the right to seek judicial disqualification should not have to be apprehensive of chastisement or penalties for raising the issue.22

INCIVILITY

“A judge should be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others…” 23

THE COURT: There comes a time when courtroom decorum must be observed.

MR. DELLINGER: Decorum is more important than justice, I suppose. — In re Dellinger, 461 F.2d 389 (7th Cir. 1972).

Judges are required to follow the law, and the law requires judges to be civil. Regardless of personal problems or provocation, a judge must show patience and dignity and use common courtesy in daily interaction with members of the bar and the public.24 In one of the first surveys examining the professionalism and civility of judges, lawyers responded, “judges are sarcastic, arrogant, rude, lack respect for lawyers, lack judicial temperament and needlessly humiliate lawyers in court.” 25 By way of explanation, it has been suggested that some judges develop an “over-active sense of entitlement, verging on self-attributed invulnerability.” 26 In the unfortunate event that a judge’s uncivil behavior creates an appearance of bias against a lawyer or party, either through words or actions, disqualification should be urged to restore due process.27

For example, a New York judge accused a lawyer, who was not even a participant in the court proceeding, of being a “thief” and overcharging clients, and added “I want to get a shot at him someday.” The judge claimed that he was only speaking figuratively and did not intend to denigrate the lawyer. Nevertheless, the court determined that these comments created an appearance of bias and ordered his disqualification in every case involving the attorney.28

Similarly, in a Connecticut case, after a heated discourse, the judge told a lawyer, who was appearing as a witness, but who had cases pending before the court, that he did not approve of the way the lawyer “handled himself.” The judge then disqualified himself in all cases in which the attorney was involved. When the presiding judge ordered the judge to preside over one of counsel’s cases, the appellate court reversed and remanded, holding that the judge’s initial remarks and disqualification created an appearance of partiality in any subsequent matters involving that attorney.29

In Florida, a judge chastised an attorney, asked him why he always had to treat the lawyer “like a school child” and ordered the lawyer out of the courtroom. Disqualification was ordered in all of the attorney’s future cases.30 Likewise, a Massachusetts appeals court judge was ordered disqualified from hearing any case involving a union, its president and the president’s family members for discourteous comments during oral argument in a labor relations matter, including that the union president “had his whole family” on the payroll, that the union had “gone amok,” and that the union president and his family were just taking money and living a lavish lifestyle.31

If a trial judge does not disqualify, expressions of bias, if proven, require automatic reversal and are not subject to harmless-error review.32 For example, in North Carolina, the defendant’s conviction for first-degree rape and kidnapping was reversed because the judge turned his back to the jury for 45 minutes during the defendant’s testimony on direct examination.33 In a Texas case, a sexual assault conviction was reversed and the teenage victim was subjected to another trial because throughout the proceedings, the judge rolled his eyes, smirked, frowned in disapproval, shook his head, yawned and sighed in an exaggerated manner, especially during the defense’s presentation.34

Judges can also be subject to discipline if they behave in an uncivil manner. For example, in In Re Sturgis,35 the judge brandished a handgun in two instances when he was startled by attorneys who approached the judge from behind the bench. The judge claimed he had once been attacked from behind and admitted he was paranoid. None of those present were of the opinion that the judge intended to fire the gun. Although the court found that the gun was not displayed in an intimidating manner, it nevertheless concluded that the judge violated the code of judicial conduct and that discipline was warranted.

Accordingly, judges should be aware that if they behave in an abusive, offensive or ridiculing manner, either by words or actions, they are damaging the image of the bench and risking consequences that can be costly and burdensome to the participants and the system.

PUBLIC COMMENT

“While a proceeding is pending or impending in any court, a judge shall not make any public comment that might reasonably be expected to affect the outcome or impair its fairness or make any non-public comment that might substantially interfere with a fair trial or hearing.”36

A judge’s comments off the bench can create a disqualifying appearance of bias and serve to diminish public confidence in an independent judiciary. For example, at an election night party, Justice Sandra Day O’Connor allegedly stated “this is terrible” when the announcers predicted Democratic presidential candidate Al Gore would win Florida. O’Connor purportedly indicated that she wanted to retire and would only do so if a Republican was president.37 In spite of public clamor that O’Connor should disqualify herself from participating in the Bush v. Gore38 decision in light of her revelations (which she has not denied), she did not.39 Conversely, Justice Scalia did disqualify himself from participating in a case challenging the words “under God” in the pledge of allegiance because he criticized the 9th Circuit’s decision striking the phrase during a speech he made at a Religious Freedom Day event.40

The 10th Circuit disqualified a judge for various comments he made during voluntary appearances on national television programs, which included referring to defendants in the pending case as “law breakers.” 41 The 7th Circuit reversed a defendant’s conviction and ordered the disqualification of the trial judge because the judge wrote a memo to the appellate court describing facts outside the record about the defendant’s pending case and opined that this defendant was an example of the terrible things that can happen when indigent defendants are released on bail. The memo was published in the local newspaper.42 In the Microsoft antitrust litigation, the trial judge was disqualified for granting secret interviews with reporters in which he criticized Microsoft, indicated how he would rule in the pending case and suggested that Microsoft’s Bill Gates was not credible.43

Similarly, in a Mississippi case, a judge wrote a letter to the editor, which was printed in the local newspaper, stating that based upon his Christian principles, it was the judge’s opinion that “gays and lesbians should be put in some type of mental institute [sic].” The reviewing court determined that regardless how outrageous the speech, the First Amendment trumps the judicial code.44 The court emphasized, however, that in publicly announcing views which — although constitutionally allowed, nevertheless cast doubt on his impartiality — the judge “created a paradox for himself” and was subject to discipline should he deny recusal motions from gays and lesbians. The court observed that “objects of judicial prejudice are entitled to seek a level playing field through recusal….” 45

Consequently, judges should be circumspect in making public comments that are likely to indicate a bias against potential litigants. Indeed, the negative fallout of Justice O’Connor’s alleged indiscretion continues to cast aspersions on the high court to this day. 46

JUDICIAL CAMPAIGNS

“A candidate for judicial office…should not make pledges or promises of conduct other than the faithful and impartial performance of the duties of the office [and should not] make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court…” 47

Judges are required to decide cases on the merits; therefore, any speech that commits a judicial candidate to a particular issue compromises judicial independence. In recent years, our courts have increasingly encountered contentious social legal issues such as school funding, reproduction rights, affirmative action, tort reform, as well as those regarding crime, drugs and violence. In Republican Party ofMinnesota v. White,48 the U.S. Supreme Court recognized that there is almost no legal or political issue that is unlikely to come before a state or federal court.49 Nevertheless, the court held that judicial candidates have a First Amendment right to announce their views on disputed political and legal issues. In White, a judicial candidate challenged the so-called “announce clause” 50 contained in the Minnesota Judicial Code which prohibited him from announcing his affiliation with the Republican Party and his anti-abortion views. Quoting extensively from Rehnquist’s 30-year-old Laird Memorandum, Justice Scalia, writing for a badly-split court,51 struck the clause as an unconstitutional restriction on free speech.

The majority in White agreed with the dissenters that some public comments, for example, those which stress a judicial candidate’s unbroken record of affirming rape convictions, can exhibit an impermissible bias in favor of one party (the prosecutor) against the other party (the defendant).52 Thus, a unanimous court recognized that some speech relating to issues may well violate a litigant’s right to be heard by a fair and impartial judge.53 Justice O’Connor rather harshly suggested that states eliminate judicial elections to avoid appearances of partiality caused by such campaign speech.54 Justice Kennedy offered more temperate solutions, including that states may “adopt recusal standards more rigorous than due process requires” rather than restrict candidates’ speech.55

Although the court did not address the constitutionality of the pledge or commit clauses, such provisions are subject to challenge in light of the White decision. For example, in Oklahoma, a state statute prohibiting judicial candidates from affiliating with political parties may no longer be enforceable.56 Also of questionable validity is an Oklahoma Judicial Ethics Panel Opinion, which suggests a judicial candidate may state her position on the death penalty, may state that she has no problem enforcing the death penalty, but may not state that she takes pride in supporting the death penalty.56

Since White, a few jurisdictions that have addressed similar pledge and commit clauses have enforced the provisions. For example, in New York, the candidate advertised that he would “work with” the local police and use bail and sentencing to make the city unattractive to criminals. The court found this pledge to assist law enforcement created the impermissible appearance that he would be biased in favor of the police.58 Similarly, in a Florida case, a successful judicial candidate was reprimanded and fined $50,000 for appearing biased in advertisements that included a statement that she would be “absolutely a reflection of what the community wants” and that “[y]our police officers expect judges to take their testimony seriously and to help law enforcement by putting criminals where they belong…behind bars!” 59

A few jurisdictions have adopted the amendments in the ABA’s new Model Judicial Code which now requires disqualification when public statements appear to commit a judge to an issue or controversy.60 The ABA standing committee that proposed the amendments noted that while the model code already contained broad rules relating to disqualification, “it was important to include a provision…that related directly to judicial campaign speech” and that was “designed to make the disqualification ramifications of prohibited speech violations explicit.” 61

Still, a few other jurisdictions have stricken similar provisions as unconstitutional, but upheld the disqualification requirement.62 Indeed, this past August, in the remanded case of Republican Party of Minnesota v. White,63 the 8th Circuit struck Minnesota’s amended provisions restricting campaign speech, yet determined that the problem of bias, or the appearance of bias, created by politically-charged campaign speech is thoroughly resolved by judicial disqualification, a solution that avoids “burning the house to roast the pig.” 64

During their own confirmation hearings, U.S. Supreme Court justices have recognized that announcing positions on controversial issues risks appearances of bias.65 Regardless of the right, judicial candidates should avoid making public comments that imply a position on popular issues and causes likely to come before the court, or they should disqualify themselves. Otherwise, the public’s confidence in American courts will certainly decline further.

1. An Independent Judiciary, Report of the ABA Commission on Separation of Powers & Judicial Independence (1997).
2. Peter A. Joy, A Professionalism Creed for Judges: Leading by Example, 52 S.C. L. Rev. 667 (2001).
3. ABA, Perceptions of the U.S. Justice System 49 (1999), reprinted in 62 ALB. L. Rev, 1307, 1320 (1999).
4. At the time of this writing, 47 states have adopted standards of professionalism for attorneys. Only a handful have similar standards for judges. See www.abanet.org/cpr/profcodes.html.
5. Supra n. 1. Research to identify the reasons for the erosion of public confidence has recently been undertaken by several organizations, including the ABA, the National Center for State Courts, the State Justice Institute and the American Judicature Society.
6. Decisional accountability refers to the manner in which judges are held accountable for rulings and decisions. While this principally takes place through appellate review, it also includes academic criticism of judicial actions. Behavioral accountability involves judicial misconduct which is addressed primarily through disciplinary proceedings. Wendell L. Griffen, Comment: Judicial Accountability and Discipline, 61 Law & Contemp. Probs. 75-76 (Summer 1998).
7. Okla. Stat. tit. 5 Ch. 1 App. 4 Canon 2(A) Oklahoma Code of Judicial Conduct.
8. “ Due process preserves both the appearance and reality of fairness, generating the feeling, so important to a popular government, that justice has been done, . . . by ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him.” This “ stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties.” Pierce v. Pierce, 2001 OK 97, 39 P.3d 791, 799 (quoting Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 243 (1980)). See also Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145 (1968); Tumey v. Ohio, 273 U.S. 510, (1927).
9. For example, there was great controversy engendered by Scalia's refusal to disqualify after going duck-hunting with Vice President Cheney. See David G. Savage, Trip with Cheney Puts Ethics Spotlight on Scalia, L.A. Times, (Jan. 17, 2004), available at www.latimes.com/news/nationworld/nation.
10. Federal Data Banks, Computers and the Bill of Rights: Hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 92d Cong., 1st Sess. 600-04. Nomination of William H. Rehnquist to Be Chief Justice of the United States: Report from the Senate Committee on the Judiciary, 99th Cong., 2d Sess. 66 (1986). See also Nomination of William H. Rehnquist to Be Chief Justice of the United States: Laird v. Tatum, 99th Cong., 2d Sess. 12412 (1986)(The speech is reprinted id. at 1590-96.)
11. Rehnquist personally forwarded his Action Plan to President Nixon for approval. See Monroe H. Freedman & Abbe Smith, Understanding Lawyers’ Ethics, 232-33 (3d ed. LexisNexis 2004); Jeffrey P. Stempel, Rehnquist, Recusal, and Reform, 53 Brook L. Rev. 589 (1987).
12. Laird v. Tatum, 409 U.S. 824, 836 (1972).
13. Id. at 837.
14. Nomination of William H. Rehnquist to Be Chief Justice of the United States: Report from the Senate Committee on the Judiciary, 99th Cong., 2d Sess. 66 (1986). See also Nomination of William H. Rehnquist to Be Chief Justice of the United States: Laird v. Tatum, 99th Cong., 2d Sess. 12412 (1986).
15. 28 U.S.C. §455(a) (2002); Okla. Stat. tit. 5 ch.1 App. 4 Canon 3(E)(1)(a) Oklahoma Code of Judicial Conduct.
16. 28 U.S.C. §455. See also Liteky v. United States, 510 U.S. 540, 548 (1994)(“ [q]uite simply and quite universally, recusal [is] required whenever partiality might reasonably be questioned.”)
17. Federal judges are also regulated by the Code of Judicial Conduct for United States Judges, 175 F.R.D. 363 (1998). United States Supreme Court justices are not governed by the Code of Conduct for United States Judges, because the Judicial Conference lacks the authority to make rules governing the United States Supreme Court.
18. Nichols v. Alley, 71 F.3d 347, 350-51 (10th Cir. 1995)(quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847(1988)).
19. See Nichols v. Alley, 71 F.3d at 352. Accord In re Boston's Children First, 244 F.3d 164, 167 (1st Cir. 2001); Republic of Panama v. Am. Tobacco Co., 217 F.3d 343, 346 (5th Cir. 2000); United States v. Dandy, 998 F.2d 1344, 1349 (6th Cir. 1993).
20. Liteky v. United States, 510 U.S. at 555-56.
21. See Liljeberg, 486 U.S. at 860 (characterizing inquiry as independent of judge's actual knowledge); United States v. Torkington, 874 F.2d 1441, 1446 (11th Cir. 1989) (requiring reassignment when judge's conduct creates significant risk of undermining public confidence in judicial neutrality). See also Leslie W. Abramson, Appearance of Impropriety: Deciding When a Judge’s Impartiality Might Reasonably be Questioned, 14 Geo. J. Leg. Ethics 55, 71 (2000) (noting that judges should be aware that objective observers of the judiciary are more likely to question impartiality); Josh Clubb, Campaign Speech Above All: Republican Party of Minnesota v. White and its Impact on Motions to Disqualify Judges, 42 Brandeis L.J. 129 (2003).
22. Richard E. Flamm, Judicial Disqualification: Recusal and Disqualification of Judges; Conflicts of Interest and Law Firm Disqualification §1.10.2 (Banks & Jordan Publ. 2003).
23. Okla. Stat. tit. 5 ch.1 App. 4 Canon 3(B)(3) Oklahoma Code of Judicial Conduct.
24. See In re Mulroy, 731 N.E. 2d 120, 122 (N.Y. 2000); Institute of Public Law, University of New Mexico Judicial Education Center, Ethics Judicial Handbook § 7-622 (2005). See also Offutt v. United States, 348 U.S. 11, 13-14 (1954)(protection of a judge's personal sense of dignity is not a valid justification for holding an attorney in contempt of court.).
25. In 1989, the Committee on Civility of the 7th Judicial Circuit conducted an informal survey of over 1500 lawyers and judges in the Seventh Judicial Circuit. Marvin E. Aspen, The Search for Renewed Civility in Litigation, 28 Val. U. L. Rev. 513, 519 (1994).
26. Steven Lubet, Stupid Judge Tricks, 41 S. Tex. L. Rev. 1301, 1310 (2000).
27. The specific rules for disqualifying a judge in Oklahoma can be found at Okla. Stat. tit. 12 Ch.2, App.1, Rule 15, Rules For District Courts of Oklahoma.
28. In the matter of Bradley, a Justice of the Supreme Court, 3rd Judicial District, Ulster County. (Oct. 1, 2002).
29. Ford v. Ford, 727 A.2d 254, 256 (Conn. App. Ct. 1999).
30. In re Schapiro, 845 So. 2d 170 (Fla., 2003).
31. In re Brown, 691 N.E.2d 573 (Mass. 1998).
32. Brown v. Hartlage, 456 U.S. 45, 53 (1982).
33. State v Jenkins, 445 S.E. 2d 622 (N.C. 1994).
34. See Antics of Judge Reflect Poorly on the Judiciary; Judges Need to Exhibit Patience, Dignity and Courtesy Toward All Who Appear Before Them, San Antonio Express-News 10B (Jan. 12, 2002).
35. 529 So 2d 281(Fla. 1988).
36. Okla. Stat. tit. 5 ch.1 App. 4. Canon 3(B)(8) Oklahoma Code of Judicial Conduct. See also Code of Conduct for United States Judges, Canon 3(A)(6), 175 F.R.D. 363, 367 (1998) ( “ A judge should avoid public comment on the merits of a pending or impending action . . . .” )
37. In fact, O’Connor did announce her retirement during President Bush’s second term.
38 531 U.S. 98 (2000).
39. Richard K. Neumann, Jr., Conflicts of Interest in Bush v. Gore: Did Some Justices Vote Illegally?, Geo. J. Leg. Ethics (Spring, 2003); found at: www.findarticles.com/p/articles.
40. Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1 (2004).
41. 1 F.3d 985 (10th Cir. 1993). The court noted that a judge considering whether to disqualify himself must ignore rumors, innuendoes, and erroneous information published as fact in the newspapers. Id. at 994 n. 6.
42. Franklin v. United States, 398 F.3d 955 (7th Cir. 2005).
43. United States v. Microsoft, 53 F3d 34 , 110-11 (D.C. Cir .2001).
44. MS Com'n on Judicial Perf. v. Wilkerson, 876 So. 2d 1006 (Miss. 2004).
45. Id. at 1016.
46. Supra n. 39.
47. Okla. Stat. tit. 5 ch.1 App. 4. Canons 5(A)(3)(d)(i) & (ii) Oklahoma Code of Judicial Conduct “ Pledge and Commit Clauses.”
48. 536 U.S. 765 (2002).
49. White, 536 U.S. at 772-773 (quoting Buckley v. Illinois Judicial Inquiry Bd., 997 F.2d 224, 229 (7th Cir.1993)).
50. The text stated that a candidate for judicial office shall not “announce his or her views on disputed legal or political issues.” Id. at 770. When White was decided, only nine states had a similar provision.
51. Justice Scalia was joined in his decision by Chief Justice Rehnquist, and Justices O’Connor, Kennedy and Thomas. O’Connor and Kennedy filed concurring opinions. Justice Stevens filed a dissenting opinion in which Justices Souter, Ginsburg and Breyer joined. Justice Ginsburg also filed a dissenting opinion joined by Justices Stevens, Souter and Breyer.
52. Justice Stevens wrote, “ [e]xpressions that stress a candidate's unbroken record of affirming convictions for rape, for example, imply a bias in favor of a particular litigant (the prosecutor) and against a class of litigants (defendants in rape cases). Id. at 800-01 (Stevens, J., dissenting). Justice Scalia responded, “ [w]e do not disagree. Some of the speech prohibited by the announce clause may well exhibit a bias against parties — including Justice Stevens’ example of an election speech stressing the candidate's unbroken record of affirming convictions for rape.” Id. at 777 n. 7.
53. See Monroe H. Feedman & Abbe Smith, Understanding Lawyers’ Ethics, § 9.07[2] at 248 (3d. ed. LexisNexis 2004).
54. White, 536 U.S. at 791 (O’Connor, J., concurring).
55. Id. at 794 (Kennedy, J., concurring).
56. See Okla. Stat. tit. 20 §1404.1(3). See also 1998 OK. JUD. ETH. 22.
57. 1998 OK. JUD. ETH. 23.
58. In the Matter of Watson, 794 N.E.2d 1 (N.Y. 2003). But see Missouri v. Kinder, 942 S.W.2d 313, 321-22 (Mo. 1996) (the court found disqualification was not required where, six days before presiding over the capital murder trial of an indigent African-American man, a Missouri trial judge, who was facing an election announced his decision to switch to the Republican party and advertised: “[t]he truth is that I have noticed in recent years that the Democratic party places far too much emphasis on representing minorities such as homosexuals, people who don't want to work, and people with a skin that's any color but white . . . .” )
59. In the Matter of Kinsey, 842 So. 2d 77 (Fla. 2003), cert. denied 124 S. Ct. 180 (2003).
60. Seven states — Arizona, Louisiana, Maryland, Minnesota, Nevada, New Mexico and Wisconsin — have adopted the ABA 2003 amendments including Canon 2.12(a) which requires that a judge shall disqualify in any proceeding in which the judge’s impartiality might be questioned by a reasonable person including when “ (5) the judge or a candidate for judicial office, has made a public statement that commits, or appears to commit, the judge with respect to an issue in the proceeding or the controversy in the proceeding.”
61. Preliminary Report of the Draft of Proposed ABA Model Rules of Judicial Conduct (June 30, 2005).
62. See North Dakota Family Alliance v. Bader, 361 F. Supp.2d 1021 (D.N.D. 2005). See also Family Trust Found. v. Wolnitzek, 345 F. Supp. 2d 672 (E.D. Ky. 2004). Similar challenges are currently pending in Alaska and Indiana.
63. 2005 U.S. App. LEXIS 15864 (8th Cir. Aug. 2, 2005).
64. Id. at 35-36 (citing Butler v. Michigan, 352 U.S. 380, 383 (1957)). The 8th Circuit noted that “ [c]oncern about the mere appearance of bias is also addressed by recusal.” Id.
65. See Laird 409 U.S. at 836 n. 5 (wherein Justice Rehnquist declared that judicial candidates should only state “ general observations about the law” ); White, 536 U.S. at 819 n. 4 (Ginsburg, J. dissenting) (citing 13 R. Mersky & J. Jacobstein, The Supreme Court of the United States: Hearings and Reports on Successful and Unsuccessful Nominations of Supreme Court Justices by the Senate Judiciary Committee, 1916-1986, 131 (1989)) (noting that then-nominee Scalia refused to say whether he would overrule a particular case, due to the appearance of impartiality). See also http://msnbc.msn.com/id/8908814/ (the Associated Press reported that John Roberts advised then-nominee O’Connor that she might face allegations of impropriety and risk disqualification if she discussed her views on specific cases).

About the Author
Sharisse O’Carroll has taught Professional Responsibility at TU College of Law since 1993. She also teaches the first year legal writing course. She is a partner of O’Carroll & O’Carroll, which focuses on employment law, criminal litigation and appellate advocacy. She has presented numerous seminars on legal ethics and is a fellow of the National Institute of Teaching Ethics and Professionalism. She is qualified as a legal ethics expert in state and federal court.