When Judges Should Be Seen, Not Heard: Extrajudicial Comments Concerning Pending Cases and the Controversial Self-Defense Exception in the New Code of Judicial Conduct

58 Pages Posted: 13 Apr 2009  

Mark I. Harrison

Osborn Maledon, PA

Keith Swisher

University of Arizona - James E. Rogers College of Law

Date Written: 2009

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.

Keywords: 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

Suggested Citation

Harrison, Mark I. and Swisher, Keith, When Judges Should Be Seen, Not Heard: Extrajudicial Comments Concerning Pending Cases and the Controversial Self-Defense Exception in the New Code of Judicial Conduct (2009). NYU Annual Survey of American Law, Vol. 64, No. 3, 2009. Available at SSRN: https://ssrn.com/abstract=1373934

Mark I. Harrison

Osborn Maledon, PA ( email )

2929 North Central Avenue
Suite 2100
Phoenix, AZ 85012
United States

Keith Swisher (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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