Ethics Column: When to Recuse or Disclose?; American Bar Association (ABA), December 30, 2024

Hon. W. Kearse McGill , American Bar Association (ABA); Ethics Column: When to Recuse or Disclose?

"When judicial recusal should occur is a perilous topic to discuss these days; in fact, to describe it as perilous may even be an understatement given recent public attention on this topic.  As judges, most of us will become quite anxious if we are hearing a case where our impartiality could be questioned.  What should we consider when this issue presents itself?

As a starting point, we can consider the ethical concept that underpins the issue of recusal or disqualification (while recusal is a judge’s sua sponte withdrawal from a case and disqualification is removal based on a party’s motion or required by statute, both terms are often used interchangeably).  A judge’s ethical duty to recuse arises from the duty to act impartially, which is based in our understanding of procedural due process as a constitutional principle." 

Thomas and Alito took part in the case, despite calls for their recusal.; The New York Times, July 1, 2024

Adam Liptak, The New York Times ; Thomas and Alito took part in the case, despite calls for their recusal.

"Justices Clarence Thomas and Samuel A. Alito Jr., rejecting calls for their disqualification, participated in the decision on the scope of former President Donald J. Trump’s immunity from prosecution.

Experts in legal ethics have said that the activities of the justices’ wives raised serious questions about their impartiality."

What Justice Alito said on ethics and recusal in his confirmation hearings; Citizens for Responsibility and Ethics in Washington (CREW), June 17, 2024

Linnaea Honl-Stuenkel and Connor Ganiats , Citizens for Responsibility and Ethics in Washington (CREW); What Justice Alito said on ethics and recusal in his confirmation hearings

"Recusals

Alito faced scrutiny for his initial failure to recuse from a case against the financial company Vanguard while serving on the U.S. Court of Appeals for the Third Circuit, despite holding at least $390,000 in Vanguard funds. Alito maintained that his failure to recuse was a mistake that he later remedied, and that ruling in the case did not actually violate judicial ethics rules. 

Alito repeatedly stressed that he would recuse from cases where the ethics code required him to do so, despite the broad duty for Supreme Court justices to hear cases. When asked about the case by Senator Orrin Hatch, Alito said, “I not only complied with the ethical rules that are binding on Federal judges—and they’re very strict—but also that I did what I have tried to do throughout my career as a judge, and that is to go beyond the letter of the ethics rules and to avoid any situation where there might be an ethical question raised.”

When pressed further by Senator Russ Feingold, Alito said he would not commit to recusing from all Vanguard cases going forward, but, “I will very strictly comply with the ethical obligations that apply to Supreme Court Justices.” 

Later, during a back and forth with Senator Edward Kennedy about his Vanguard mutual fund not being on his recusal list, Alito said: “I am one of those judges that you described who take recusals very, very seriously.” 

Alito’s inverted flag makes a mockery of the Supreme Court’s code of ethics; The Hill, May 21, 2024

 CEDRIC MERLIN POWELL, The Hill; Alito’s inverted flag makes a mockery of the Supreme Court’s code of ethics

"This violates the court’s newly minted code of conduct, which remains unenforced because the court regulates itself. Its legitimacy is buttressed by a paper tiger.

The inverted flag on Justice Alito’s flagpole violates nearly all of the court’s ethical rules. 

Its first disqualification rule says “A Justice is presumed impartial and has an obligation to sit unless disqualified.” Alito’s impartiality has been shattered. He should be disqualified because he has not avoided “impropriety and the appearance of impropriety in all activities” per Canon 2, and he cannot “perform the duties of office fairly [and] impartially” per Canon 3 because the inverted flag signals his allegiance to a party that has pending matters before the court. 

The partisan and volatile tenor of the inverted flag “endorse[s] a … candidate for public office,” which violates Canon 5 because it trades in the discredited Trump-invented trope of a stolen election. Justice Alito has not refrained from political activity; thus, the independence of the judiciary is called into question, per Canon 1. This is particularly disconcerting because Justice Alito is the third most senior justice on the court...

Every branch of government, including state and lower federal courts, has enforceable and binding codes of conduct that ensure impartiality, fairness and legitimacy. Congress must adopt a binding code of conduct for the Supreme Court. We should right the flag by turning it upward toward our democratic principles."

State judge slapped with ethics complaint for “inappropriate” TikTok videos; New Jersey Monitor, July 3, 2023

DANA DIFILIPPO, New Jersey Monitor; State judge slapped with ethics complaint for “inappropriate” TikTok videos

"A state Superior Court judge is in trouble after he allegedly posted videos to TikTok of himself lip-syncing racy songs in the courthouse, lying half-clothed in bed, and in other situations a judicial ethics panel found objectionable.

Judge Gary N. Wilcox, who’s assigned to the Bergen County vicinage, posted 40 videos over a two-year period to a public account under the pseudonym “Sal Tortorella,” and 11 of them “were inappropriate and brought disrepute to the Judiciary,” the state Advisory Committee on Judicial Conduct wrote in a 5-page formal complaint filed Friday and announced Monday.

The videos were objectionable because of their content (profanity and references to violence, sex, and misogyny), location (the courthouse, his judicial chambers, or a bed), or his physical appearance (in his judicial robes and/or partially unclothed in bed), the committee wrote...

It also violates the judicial code of conduct, including one rule requiring judges “to conduct their extrajudicial activities in a manner that would not cast reasonable doubt on the judge’s capacity to act impartially as a judge, demean the judicial office, or interfere with the proper performance of judicial duties,” the committee noted."

THE BANGALORE PRINCIPLES OF JUDICIAL CONDUCT; The Judicial Integrity Group

The Judicial Integrity Group , THE BANGALORE PRINCIPLES OF JUDICIAL CONDUCT

"THE BANGALORE PRINCIPLES OF JUDICIAL CONDUCT

The Bangalore Principles are intended to establish standards for ethical conduct of judges. They are designed to provide guidance to judges and to offer the judiciary a framework for regulating judicial conduct. Six core values are recognized: Independence, impartiality, integrity, propriety, equality and finally competence and diligence. The Principles define their meaning and elaborate in detail on what kind of conduct is to be expected in concrete terms of the persons concerned in order to put the respective value into practice. A number of specific instructions are given under each of the values. Not only have some States adopted the Bangalore Principles but others have modelled their own Principles of Judicial Conduct on them. International organisations have also looked at it with favour and given it their endorsement. The United Nations Social and Economic Council, by resolution 2006/ 23, has invited member States consistent with their domestic legal systems to encourage their judiciaries to take into consideration the Bangalore Principles of Judicial Conduct when reviewing or developing rules with respect to the professional and ethical conduct of the members of the judiciary. The United Nations Office on Drugs and Crime has actively supported it and it has also received recognition from bodies such as the American Bar Association and the International Commission of Jurists. The judges of the member States of the Council of Europe have also given it their favourable consideration."

Judges vote unanimously to adopt new conduct and ethics guidelines; The Irish Times, February 4, 2022

Mary Carolan, The Irish Times; Judges vote unanimously to adopt new conduct and ethics guidelines

"Judges have voted to adopt new conduct and ethics guidelines which will be the framework for the first judicial misconduct complaints procedure here. 

At a remote meeting on Friday of the 167 member Judicial Council, the guidelines were unanimously supported by the participants. The guidelines were circulated to the judiciary last month. 

In a foreword to the judges, Chief Justice Mr Justice Donal O’Donnell recommended their adoption. He said public confidence in the justice system “depends on the integrity and authority of the judiciary”. 

As well as promoting the “highest standards” of judicial behaviour, the guidelines will also provide a framework for the conduct review function of the council, he said. 

Prepared by the council’s Judicial Conduct Committee (JCC), the guidelines are based on international principles known as the Bangalore Principles, aimed at ensuring judicial independence, impartiality, integrity, propriety and the appearance of propriety, competence and diligence and equal treatment of all who come before the courts.

They are intended to guide judges as to their conduct and to form the framework for a detailed judicial misconduct complaints procedure which, under the Judicial Council Act 2019, must be operable by June 28th next."

[Editorial] Judicial Ethics and the Supreme Court; New York Times, 1/5/12

[Editorial] New York Times; Judicial Ethics and the Supreme Court:

"It is not enough for the justices to rely on their own “constant vigilance and good judgment,” as Chief Justice Roberts contends. It is disingenuous for him to claim that “no compilation of ethical rules can guarantee integrity” when no code currently applies to the court. Adopting a conduct code would clarify the rules that apply to the justices and greatly bolster public confidence in the court."