Evaluating Judicial Standards of Conduct in the Current Political and Social Climate: The Need to Strengthen Impropriety Standards and Removal Remedies to Include Procedural Justice and Community Harm

Abstract

Chief Justice Warren Burger warned that when “people who have long been exploited . . . come to believe that courts cannot vindicate their legal rights from fraud,” an “incalculable damage [is done] to society.”

Part I of this Article presents an examination of the current common frameworks shared by the states for addressing judicial conduct appealing to popular social and political influences. Included in this section is an analysis of the interrelationship between implicit bias and impropriety, as well as on community harm and procedural justice.

Part II provides both a historical and contemporary analysis of “populism,” including the effect of populism on the nation’s judiciary. This section provides an argument for why historic models of populism provide only minor guidance for addressing the current wave of populism’s impact on the courts.

Part III then examines the effect of judicial behavior and populism in three areas of concern. These are: racially derogatory conduct by judges; demeaning conduct in regard to gender such as sexual harassment; and, discrimination against gays, lesbians, and transgendered persons.

The Article concludes with the argument that because judicial behavior, whether on the bench or off, which is derogatory to persons on the basis of race, national origin, gender, LGBT status, or other protected classes creates a community harm which makes fair and impartial trials less likely, removal sanctions should be more readily accepted.