A Letter from Geoffrey C. Hazard, Jr.December 20, 2000 Michael Traynor Re: Participation by Judges in Professional Discussion of Legal Subjects Dear Mr. Traynor: This memorandum responds to your inquiry as to whether there is a serious question, as a matter of ethics and of prudent conduct, about the propriety of judges participating in professional discussion of legal subjects outside their official deliberations in judicial office. There have been some statements and accusations that participation of that kind is inappropriate or even unethical. The suggestion is that judges get “brainwashed” or at least become involved in the “appearance of impropriety.” In my opinion, most of these statements or accusations are quite unjustified. There is a proper basis for objection when judges attend lectures and discussions presented or supported by interest groups. Judges should be careful on this score and decline to attend programs that are promotional efforts. However, there are many programs that are neutral with respect to controversial issues or that address legal issues that are politically inconsequential. At the same time, judges can contribute to appropriate programs through their detached perspective and benefit from becoming acquainted with developing legal issues. I note immediately that I may be considered biased in analyzing this problem. I was Director (executive director) of The American Law Institute for 15 years. The Institute does projects in improvement of the law, sometimes dealing with politically controversial subjects, and the Institute has always had many judges as members. I have also been a member or assistant in several American Bar Association projects that address complex and sometimes controversial issues, a member of the Rules Committee of the Judicial Conference of the United States, and an occasional contributor to analysis of such questions in connection with state and federal legislation. All these activities sometimes touch on politically “hot” issues. Many judges, from state and federal courts all over the country, have been involved, directly or indirectly, in these projects. This kind of project has legal subject matter and typically sponsorship that is broad-based and politically neutral. The concerns about judicial participation include ethical concerns and matters of prudence and common sense. As far as ethics are concerned, the universally recognized rule is that set forth in the Code of Judicial Conduct. The Code has been adopted in all the states, as far as I am aware, and in the federal courts. I note that I was adviser and chief draftsman for the committee that developed the Code. Membership in that committee, as I am sure you are aware, included Justice Potter Stewart of the United States Supreme Court, Chief Justice Roger Traynor of the California Supreme Court, Judge Irving Kaufman of the United States Court of Appeals, and several lawyers of national standing. The relevant rule is Canon 4. The general rule, stated in Canon 4A, is that:
Canon 4B specifically addresses activities of the kind at issue and states:
The Comment to Canon 4B states:
These provisions in the Code of Judicial Conduct were written over 30 years ago and reflected understandings that had been well recognized long before. It has been my observation that, in participation in this kind of activity, the judges have been extremely conscientious in not expressing ideas regarding politically sensitive issues. The judges also make it a practice to refrain from voting on politically controversial issues. It has also been my observation that in the exploration and discussion of all issues, whether controversial or otherwise, the judges contribute useful perspective, specifically a broad view of the public interest and a strong sense of civic responsibility. That viewpoint is important in all deliberations about law, perhaps more so today than in previous eras. The judges also benefit from this sort of participation, in two important ways. First, the judges encounter various legal viewpoints that may not be presented in cases coming before them. Litigated cases always involve relatively tight focus on the issues immediately presented, and sometimes obscure other considerations that may be indirectly involved. The parties to the litigation usually have no incentive to refer to these other considerations and often are ignorant about them. More general discussions of legal questions, such as occur in the settings I refer to, can bring out these background factors. I can state from personal knowledge that unawareness of such factors has sometimes led courts to serious misunderstanding of the issues before them. Second, the judges can learn from discussions by lawyers about legal issues that are on the horizon. Appellate judges encounter legal problems only after the issues are presented to trial courts, and trial judges become engaged with novel legal problems only after lawyers have first dealt with them. The time lag in these developments has become much more acute in recent years, because legal change and legal maneuver now come at increasingly rapid pace. In my observation the discussions in professional and academic conferences often address legal problems that will come before the appellate courts only three to five years into the future, but which can be influenced by judicial decisions being pronounced in the present. In my opinion a practical and realistic concept of judges’ responsibilities is expressed in the Code of Judicial Conduct, quoted above. That has certainly been the concept shared by judges of such standing as Chief Justice Rehnquist, Chief Justice William Howard Taft, and Justice Benjamin Cardozo. Sincerely, Geoffrey C. Hazard, Jr. ¹Director Emeritus Hazard kindly agreed to prepare this letter at my request. His careful, expert, and practical statement provides a constructive analysis and rationale for the propriety as well as the importance of participation by judges in our deliberations. — M.T. |