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Abstract:
This Article exposes several rather startling characteristics of the good moral character requirement for bar applicants. The requirement arose in part from the bar's desire to exclude competition, particularly competition from certain nationalities and racial groups. It later was expanded to exclude the morally unorthodox (e.g., communists, cohabiters, or felons). Presently, and importantly, despite rhetoric about flexibility and forgiveness, the requirement is applied rigidly and even disingenuously to many applicants with criminal records. I find a marked increase in the exclusion of applicants with criminal records, despite also finding that their criminal conduct occurred (on average) nearly a decade before their bar applications. The Article then illustrates that the bar's application of its flexible standard for admittance is both perverse and unrealistic; it is not only unfair to applicants, but it is unprecedented in psychology and moral philosophy. The Article concludes that these exclusionary practices result almost solely from the bar's concerns with its reputation and (misconceived) self-image. Finding that justification shallow, the Article offers some compromise positions for bar committees, courts, and law schools to employ in their screening processes.

Character Review, Character Screening, Good Moral Character, Criminal Record, Criminal History, Licensing Requirements, Bar Admissions

Abstract:
This Article cautions that, in the main, judges should rule equitably and primarily on the facts and circumstances before them, with attention paid less to the systemic and societal effects of decisions and more to the immediate consequences on the parties sub judice. The preceding directive, it will be seen, is not only ethically implicated, but is inherent in the proper role of the judge. In Parts I and II, this Article briefly interprets the history of the intellectual counter-development over the last one-hundred years, beginning with Holmes and ending with emphases on Duncan Kennedy's implicit and Robert Cover's explicit rebellion against the ethic. The belated decline of instrumentalism and detachment in American judicial thought is a welcome event in which judges of all levels should become (more) aware of the tangible - even violent - consequences of their decisions on the parties before them and respond ethically to that reality. In Part III, the Article employs a discussion of two very recent United States Supreme Court cases, a comparison of which illustrates the mistake of judicial detachment and instrumentalism. The Article concludes that such categorical - or even presumptive - reasoning is morally wrong and judicially irresponsible.

Judicial Ethics, Clark v. Arizona, Holmes v. South Carolina, American Legal Thought

Abstract:
This Article demonstrates that merit selection is functioning commendably in Arizona and, for the most part, provides the public with a judicial selection process far more informative and generally superior to "traditional elections." Part I of this Article sketches the history of Arizona's judicial merit selection and its previous state-wide judicial election system. Part II discusses and analyzes attacks on merit selection and, in addition, assesses the effect of the Judicial Performance Review program initiated in 1992 to enhance the efficacy of the merit selection system. Finally, largely through extensive interviews of many participants in Arizona's merit selection system, Part III describes the current status of merit selection in Arizona and offers some fresh perspectives on the value of merit selection, with suggestions to assure its preservation in Arizona and its implementation elsewhere. The Article concludes that merit selection, while not a perfect system, has significant advantages over a system of traditional, partisan or non-partisan elections.

Merit Selection, Judicial Performance Review, Appointive Selection, Judicial Selection, Judicial Elections

Abstract:
Judges in the United States regularly (and often harshly) are disciplined for "bad" criminal law decisions. On a number of levels, it is baffling that this ethical "Rule" - punishing judges for errors of adjudication - has never been the subject of in-depth critical analysis. Thus, this Article is surprisingly the first scholarly work fully deconstructing the Rule (along with attendant considerations in criminal law adjudication) and addressing directly many of the tough questions that have been avoided or mistreated.

This Article begins by examining an unexamined, "yet earthshaking" movement - that is, the modern invention of using judicial conduct commissions ("judge prosecutors") to police violations of criminal defendants' legal rights. The Article goes on to justify the movement in the context of the high stakes of criminal adjudication. It ends by arguing several important implications and practical consequences of the movement on the conduct of judges, attorneys, and the criminal justice system. Along the way, I redefine the Rule in a manner that cleanses the sloppy and self-defeating elements of the Rule that have collected over the last thirty-plus years of case law, and I confront the most fundamental objection to the Rule - the rhetoric of judicial independence - using the objection and ethical theory to discern the Rule's legitimate limits, the most important of which is protecting adjudications that avert significant injustice. Finally, the Article concludes by assessing the ABA's revisions of the Rule in February of last year (through the new Model Code of Judicial Conduct), and it suggests that state supreme courts should adopt the ABA's proposed revisions only after substantial modification.

judicial ethics, judicial discipline, judicial independence, criminal law, adjudication, ABA Model Code of Judicial Conduct, judicial conduct commissions

Abstract:
This Article is part of Drake Law Review's Annual Symposium, which is cosponsored by the American Judicature Society and entitled Morals v. Merits: The Intersection of Personal Convictions and Federal Judicial Selection. I thank Andrew M. Wilcox for his improvements of this Article.

This Article contains the preliminary criteria of the moral adjudicator. It outlines their importance first by critiquing the pervasive morals versus merits dichotomy in judicial selection and second by explicating the virtue of open-mindedness in ethics generally and judges specifically. This sketch works by adapting and applying approximately four critical perspectives: (1) a broad conception of justice; (2) moral pluralism; (3) ethical contextualism; and (4) the rules and norms of judicial ethics. When justice, legal-context morality, and the nature of ethical adjudication are properly understood and defined, the confluence of these four perspectives counsels that morals equal merits and vice versa. This Article makes the related, but surely distinct, claim of a prime directive for the judiciary - to guarantee an escape valve function to the (otherwise inevitable) unfair application of law. It claims further that this directive implicates the prime virtue of the judiciary, which is stubborn open-mindedness. The judicial selector, then, should be concerned primarily with whether the judge and her judicial philosophy meet these criteria. Through the use of a hypothetical nominee opining on the ubiquitous abortion issue, the Article also illustrates this inquiry.

Federal Judicial Selection; Judicial Appointment; Adjudicatory Justice; Judicial Ethics; Code of Judicial Conduct; Canons of Judicial Ethics

Abstract:
This work explores the ethical boundaries of judges speaking to the media and others concerning their impending or pending cases. We ultimately take a rather dim view of the practice, with particular scrutiny applied to instances in which judges defend or explain their rulings in the press in response to criticism.

The primary problem is that by commenting on the merits of pending cases over which the judge is presiding, she is elevating her personal interests (most commonly, either self-aggrandizement or self-defense) over the interests of the parties or even the more abstract interests of justice. Another problem with these extrajudicial comments in practice is that they result from, or at least are influenced by, ex parte contacts with the media-contacts that are unknown to (or at least practically uncorrectable by) the parties. Furthermore, a regime of extrajudicial speech fails properly to incentivize judges to explain their official actions where it counts, namely, in their rulings and opinions, not to the media or other external outlets. Finally, and perhaps most importantly, because the likelihood of disqualification is so high when a judge extrajudicially comments on anything close to the merits, the outspoken judge regrettably buys herself a one-way ticket off of the case. Therefore, unless the commenting judge has some (better) proof that the comment will benefit (or mitigate a detriment to) some legitimate cause other than herself, she generally should leave the extrajudicial commenting to third parties. A part-map follows.

Part I lists the pertinent ethical rules with which we will be dealing, and Part II describes their evolution through former iterations of the judicial codes. Part III then documents the drafting history of the new rules; the discernible legislative and drafting history is documented exhaustively not only to illuminate the intended meaning and spirit of the current rules, but also to provide a resource for future research on the subject. Part IV begins the substantive analysis by flagging several perplexities inherent in the text of the (old and) new rules, including potential conflicts within the text of the new rules themselves and conflicts vis-a-vis other rules and themes of the Model Code. Part V discusses the merits of the rules and concludes that several forceful arguments counsel against extrajudicial comments on the merits of pending cases. It then discusses and critiques many of the counterarguments-none of which justifies significant extrajudicial comments. Finally, Part VI offers several general approaches and simple solutions to the problems of extrajudicial comments, including the new self-defense exception.

Judicial Ethics, Model Code of Judicial Conduct, Canon 3B(9), Canon 2, Rule 2.10, Judicial Speech, Extrajudicial Comment, Ex Parte Communications, Judges Speaking to Press or Media