68 Pages Posted: 23 Mar 2011
Date Written: March 17, 2011
The legitimacy of the judicial branch of government depends on the impartiality of its judges. Nineteenth century lawyers and litigants understood this fact and regarded actual impartiality as the fundamental value of judicial ethics. Today, the emphasis on maintaining judicial legitimacy has shifted from reality to perception. Modern codes of judicial ethics are designed first and foremost to protect the “appearance” of impartiality by barring any personal, financial, civic, or political activity of a judge that may be perceived as adversely reflecting on judicial objectivity. Insuring impartiality in fact has become a secondary concern.
The career of nineteenth century judge David Davis illustrates that actual judicial impartiality, not the appearance of impartiality, sustains public faith in the judiciary. Davis was universally recognized as an impartial judge even though his off-bench alliances, especially with Abraham Lincoln, shouted out partiality and favoritism. After establishing Judge Davis’s unimpeachable reputation for courtroom fairness, the Article evaluates his off-bench activities under modern rules of judicial conduct. Next, the Article traces the transition from actual impartiality as the measure of a judge’s worth in Davis’s time to today’s emphasis on appearances. Finally, modest reforms in judicial selection, evaluation, education, and discipline are offered as a means of reestablishing actual impartiality as the fundamental value of judicial ethics.
Keywords: Judicial Conduct, Judicial Discipline, Model Code of Judicial Conduct, David Davis, Abraham Lincoln, Judicial Selection, Judicial Ethics, Ex Parte Milligan, Judicial Education
JEL Classification: K19, K40, K42, N41
Suggested Citation: Suggested Citation
McKoski, Ray, Reestablishing Actual Impartiality as the Fundamental Value of Judicial Ethics: Lessons from ‘Big Judge Davis’ (March 17, 2011). Kentucky Law Journal, Vol. 99, No. 2, 2010-2011. Available at SSRN: https://ssrn.com/abstract=1789208