The Supreme Court’s Ethics Problem Has a Pretty Easy Solution; Bloomberg Law, August 25, 2023

 Michael J. Broyde, Bloomberg Law; The Supreme Court’s Ethics Problem Has a Pretty Easy Solution

"Much has been written on the ethical problems facing the Supreme Court. Writers fixate mostly on the lack of an ethics code and the conduct of specific justices.

Yet in this discussion, many have missed something key: These aren’t the real issues. In fact, US law already has the basic outlines of an ethics code. Federal law states directly that “any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

The statute, if applied uniformly and properly, solves nearly all the issues that have recently plagued the high court’s image by making the rules themselves clear.

Not only does the statute explicitly cover the justices, but every sitting justice also has accepted that the statute governs them, as noted in many cases and in the recent letter about ethics signed by the nine.

The real issue when it comes to the court’s ethical problems concerns this statute’s implementation."

Serious questions remain about the ethics code for new appellate court; The Exponent Telegram, January 16, 2022

David McMahon, The Exponent Telegram; Serious questions remain about the ethics code for new appellate court

"West Virginia’s newest court is set to open its doors this year, but important questions are still to be determined about an ethics code for its judges.

Proposed by legislators in early 2021 and signed into law by Governor Jim Justice soon after, the West Virginia Intermediate Court of Appeals is speeding towards its July start date.

Key among the rules by which it will operate are requirements for situations in which justices must decide whether to remove themselves from a case because of the potential for bias or a personal connection to a litigant or the case."

No, President Trump, Sessions’s recusal is not ‘very unfair’ to you. This is Ethics 101.; Washington Post, July 20, 2017

Ruth Marcus, Washington Post; No, President Trump, Sessions’s recusal is not ‘very unfair’ to you. This is Ethics 101.

"So Sessions’s situation and the question of whether he could oversee the Russia investigation doesn’t present a close call. As Sessions told the Senate Intelligence Committee last month, “That regulation states, in effect, that department employees should not participate in investigations of a campaign if they have served as a campaign advisor.” In other words, it’s a no-brainer, at least if you understand basic concepts of conflict of interest. What Trump perceives as betrayal is Ethics 101."

Letter to the Editor "Code Of Ethics", Press & Dakotan, July 13, 2017

Letter to the Editor, George Fournier MD, FACS, Yankton, Press & Dakotan,

Code Of Ethics

"With the current controversy surrounding the permitting of CAFOs [concentrated animal feeding operations] in Yankton County and concerns being voiced about the seeming unethical and almost subliminal way the commissioners and the zoning commission have relaxed zoning laws for proposed CAFOs, I asked the question: Is there a code of ethics and principles that Yankton County commissioners must adhere to in the performance of their duties as commissioners?

A Google search of the topic as well as a search of the county web site fails to specify the code. What is out there is a Commissioners Handbook, authored by the South Dakota Association of County Commissioners (SDACC). I read the second edition. The ethics section is on page 17.

Reading the section several times gives me the sinking feeling that there are potential ethical land mines faced by the commissioners. Two of the five commissioners are officers at a local bank, and a third is described in his bio on the commissioners’ website as, “He runs a diversified operations of alfalfa, soybeans, corn and hogs. Ray sits on many agricultural-related boards and is all about the future of the industry.” Really? Is he also all about the welfare of the citizens who elected him to office?

In the ethics section of the SDACC Commissioner’s Handbook on page 18: “… they should abstain from a vote on issues on which they would profit or enhance a relationship.” Clearly there are potential ethical issues facing our commissioners that need to be cleared up.

Should these three commissioners recuse themselves from voting on CAFO issues to avoid the appearance of impropriety or conflict of interest? It is unsettling to think that Yankton County commissioners could be blatantly violating the code of ethics suggested by their association."

Roberts Recuses From Patent Case After Discovering Conflict; Associated Press via New York Times, 1/4/17

Associated Press via New York Times; 

Roberts Recuses From Patent Case After Discovering Conflict:

"Supreme Court Chief Justice John Roberts says he will no longer participate in deciding a patent infringement case because he discovered he owns shares in the parent company of one of the parties.

Roberts took part in arguments in the dispute between California-based Life Technologies Corp. and Wisconsin-based Promega Corp. on Dec. 6."

The Clintons’ ethics test: Government watchdogs weigh in on the Clinton Foundation’s latest maneuvers; Salon, 8/23/16

Simon Maloy, Salon; The Clintons’ ethics test: Government watchdogs weigh in on the Clinton Foundation’s latest maneuvers:

"What has to happen, given that history, is that a Clinton administration’s dealings with people and entities linked to the Clinton Foundation would have to be handled with a high level of transparency. Per Holman, the Office of Government Ethics “could easily run through the donor lists to the foundation, identify the potential conflicts of interests of any administration actions and require, or ask for, full disclosure of the process.” POGO’s Amey noted that there are existing safeguards protecting against ethical breaches by government officials – recusal processes, mandatory divestments, etc – and those will have to be enforced to the highest degree. “We need to make sure that we go as far as we can with those initiatives,” says Amey, “to make sure that the White House is as clean as possible.”

So while it’s certainly welcome that the Clintons have taken steps to safeguard against further conflicts of interest through the Clinton Foundation, there’s still quite a backlog of donor history that can still cause them ethical trouble (to say nothing of the fact that the foundation will apparently continue taking foreign money up to the point that Hillary wins election). How much political damage they absorb from that will be determined largely by how transparent a future Clinton administration is willing to be."

RBG Just Risked Her Legacy to Insult Trump; Slate, 7/12/16

Mark Joseph Stern, Slate; RBG Just Risked Her Legacy to Insult Trump:

"To be clear, what Ginsburg is doing right now—pushing her case against Trump through on-the-record interviews—is not just unethical; it’s dangerous. As a general rule, justices should refrain from commenting on politics, period. That dictate applies to 83-year-old internet folk heroes as strictly as it applies to anybody else who dons judicial robes. The independence of our judiciary—and just as critically, its appearance of impartiality—hinges on a consistent separation between itself and the other branches of government. That means no proclamations of loyalty to any candidate, or admissions of distaste of any other."

Bipartisan Disapproval Follows Bill Clinton's Meeting With Loretta Lynch; NPR, 6/30/16

Carrie Johnson, NPR; Bipartisan Disapproval Follows Bill Clinton's Meeting With Loretta Lynch:

"From the standpoint of legal ethics, Lynch did nothing wrong, said New York University law school professor Stephen Gillers. Gillers said he didn't think the attorney general needed to recuse herself from overseeing the email probe. But Gillers took a sterner tone with Bill Clinton.

"It was the height of insensitivity for the former president to approach the attorney general," Gillers said. "He put her in a very difficult position. She wasn't really free to say she wouldn't talk to a former president," after Clinton boarded her plane in Arizona.

"He jeopardized her independence and did create an appearance of impropriety going on to her plane," Gillers added."

Why Trump lawyers won’t ask Trump University judge to step aside; Reuters, 6/6/16

Alison Frankel, Reuters; Why Trump lawyers won’t ask Trump University judge to step aside:

"As many, many legal experts have opined in the past few days, a federal judge’s ethnicity or national origin cannot serve as the basis for a claim of judicial bias. The 2nd U.S. Circuit Court of Appeals, for instance, held in its 1998 opinion in MacDraw Inc v. CIT Group that U.S. District Judge Denny Chin (now on the appeals court) was within his rights to sanction two lawyers who asked whether his Asian ancestry prejudiced him against them. (They were involved in completely separate litigation against an Asian fundraiser for President Bill Clinton, who appointed Chin.) “Courts have repeatedly held that matters such as race or ethnicity are improper bases for challenging a judge’s impartiality,” the 2nd Circuit said. Added Alexandra Lahav, who specializes in legal ethics at the University of Connecticut: “There is no basis in the law or our legal history. It’s antithetical to the rule of law.”

Trump has a First Amendment right to express his opinion of the Trump University proceedings, which have certainly not gone the way he and his lawyers would have liked...

Outside of court, Trump can say just about whatever he wants about the case without much risk of being held accountable. It might be another story if the candidate were to express contempt for Judge Curiel or the proceeding inside the judge’s courtroom, but so far, Trump has not made accusations to Curiel’s face.

Nor are the candidate’s lawyers responsible in court for what their client says about the judge outside of the courtroom. The American Bar Association’s model rules of professional conduct explicitly say that representing a client does not mean a lawyer endorses the client’s “political, economic, social or moral views or activities.” Ethics adviser Thomas Mason of Harris Wiltshire & Grannis said lawyers generally do not face sanctions for what their clients say – and that goes double when the client is running for president. “How easy do you think it would be for any lawyer at any firm to control what Mr. Trump says?” Mason asked.

If, however, O’Melveny were to accuse Judge Curiel of bias in a filing that cited only his heritage as evidence, according to legal ethics experts, the firm could be accused of bringing a frivolous motion, according to Mark Foster of Zuckerman Spaeder and Barry Cohen of Crowell & Moring, who counsel law firms on professional responsibility."