Attorney Lawrence Okinaga, a Partner with Carlsmith Ball, joins producer/host Coralie Chun Matayoshi to discuss how judges are selected, canons of ethics that judges need to abide by, and why the U.S. Supreme Court doesn’t have a judicial code of ethics.

Judges represent the third and co-equal branch of government and are entrusted to make important decisions that affect everyone’s lives.  In the wake of recent U.S. Supreme Court decisions on abortion and gun rights, confidence in the high court has plummeted to its lowest point in 50 years. 

Q.  In Hawaii, judges are appointed but most states have some form of election of their judges.  How does this work and what are the pros and cons of each method?

Thirty-one States use commissions to aid the governor or other appointing authorities in selecting judges; such appointments usually have some form of confirmation by legislative bodies.

Elections give citizens the right to choose their judges which makes judges accountable to the people.  Elections often require campaigning and thus financial support and are sometimes based on party affiliation. Judges who depend on re-election often may want to and do make decisions based on what the majority of voters in their jurisdiction want instead of making objective decisions based on interpretation of the law and facts, which might be unpopular. 

Appointment of judges by governors and presidents does allow judicial selections to be based on merit which should then allow judges to make decisions they believe to be based on the law and fair, regardless of whether voters agree with them. When most federal judges are selected to serve, Citizens still have input through their duly elected senators because these nominations are subject to the advice and consent of the Senate.

Q.  Once a judge is elected or appointed to the bench, how long do they serve?

State judges have different terms as delineated in their State Constitutions.  In Hawaii, District Court judges have 6-year terms and Circuit and appellate courts judges have 10-year terms, which can be renewed.  All judges must retire at 70 years of age.  In the federal system, judges are appointed for life unless they die, resign, or retire.

Q. In an effort to promote the “integrity and independence of the judiciary,” all judges (except for the U.S. Supreme Court, and we’ll get to that later) swear to abide by a Judicial Code of Conduct.  Let’s talk briefly about each Canon under the federal code.

Canon 1: A Judge Should Uphold the Integrity and Independence of the Judiciary
An independent and honorable judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.

Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities

(A) Respect for Law. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

(B) Outside Influence. A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge.  A judge should not testify voluntarily as a character witness.

(C) Nondiscriminatory Membership. A judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.

Canon 3: A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently

The duties of judicial office take precedence over all other activities. The judge should perform those duties with respect for others, and should not engage in behavior that is harassing, abusive, prejudiced, or biased. The judge should adhere to the following standards:

(A) Adjudicative Responsibilities.

(1) A judge should be faithful to, and maintain professional competence in, the law and should not be swayed by partisan interests, public clamor, or fear of criticism.

(2) A judge should hear and decide matters assigned, unless disqualified, and should maintain order and decorum in all judicial proceedings.

(3) A judge should be patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity. A judge should require similar conduct by those subject to the judge’s control, including lawyers to the extent consistent with their role in the adversary process.

(4) A judge should accord to every person who has a legal interest in a proceeding, and that person’s lawyer, the full right to be heard according to law. Except as set out below, a judge should not initiate, permit, or consider ex parte communications or consider other communications concerning a pending or impending matter that are made outside the presence of the parties or their lawyers. If a judge receives an unauthorized ex parte communication bearing on the substance of a matter, the judge should promptly notify the parties of the subject matter of the communication and allow the parties an opportunity to respond, if requested. A judge may:

(a) initiate, permit, or consider ex parte communications as authorized by law;

(b) when circumstances require it, permit ex parte communication for scheduling, administrative, or emergency purposes, but only if the ex parte communication does not address substantive matters and the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication;

(c) obtain the written advice of a disinterested expert on the law, but only after giving advance notice to the parties of the person to be consulted and the subject matter of the advice and affording the parties reasonable opportunity to object and respond to the notice and to the advice received; or

(d) with the consent of the parties, confer separately with the parties and their counsel in an effort to mediate or settle pending matters.

(5) A judge should dispose promptly of the business of the court.

(6) A judge should not make public comment on the merits of a matter pending or impending in any court. A judge should require similar restraint by court personnel subject to the judge’s direction and control. The prohibition on public comment on the merits does not extend to public statements made in the course of the judge’s official duties, to explanations of court procedures, or to scholarly presentations made for purposes of legal education.

(B) Administrative Responsibilities.

(1) A judge should diligently discharge administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court personnel.

(2) A judge should not direct court personnel to engage in conduct on the judge’s behalf or as the judge’s representative when that conduct would contravene the Code if undertaken by the judge.

(3) A judge should exercise the power of appointment fairly and only on the basis of merit, avoiding unnecessary appointments, nepotism, and favoritism. A judge should not approve compensation of appointees beyond the fair value of services rendered.

(4) A judge should practice civility, by being patient, dignified, respectful, and courteous, in dealings with court personnel, including chambers staff. A judge should not engage in any form of harassment of court personnel. A judge should not retaliate against those who report misconduct. A judge should hold court personnel under the judge’s direction to similar standards.

(5) A judge with supervisory authority over other judges should take reasonable measures to ensure that they perform their duties timely and effectively.

(6) A judge should take appropriate action upon receipt of reliable information indicating the likelihood that a judge’s conduct contravened this Code, that a judicial employee’s conduct contravened the Code of Conduct for Judicial Employees, or that a lawyer violated applicable rules of professional conduct.

(C) Disqualification.

(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which:

(a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or lawyer has been a material witness;

(c) the judge knows that the judge, individually or as a fiduciary, or the judge’s spouse or minor child residing in the judge’s household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be affected substantially by the outcome of the proceeding;

(d) the judge or the judge’s spouse, or a person related to either within the third degree of relationship, or the spouse of such a person is:

(i) a party to the proceeding, or an officer, director, or trustee of a party;

(ii) acting as a lawyer in the proceeding;

(iii) known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; or

(iv) to the judge’s knowledge likely to be a material witness in the proceeding;

(e) the judge has served in governmental employment and in that capacity participated as a judge (in a previous judicial position), counsel, advisor, or material witness concerning the proceeding or has expressed an opinion concerning the merits of the particular case in controversy.

(2) A judge should keep informed about the judge’s personal and fiduciary financial interests and make a reasonable effort to keep informed about the personal financial interests of the judge’s spouse and minor children residing in the judge’s household.

(3) For the purposes of this section:

(a) the degree of relationship is calculated according to the civil law system; the following relatives are within the third degree of relationship: parent, child, grandparent, grandchild, great grandparent, great grandchild, sister, brother, aunt, uncle, niece, and nephew; the listed relatives include whole and half blood relatives and most step relatives;

(b) “fiduciary” includes such relationships as executor, administrator, trustee, and guardian;

(c) “financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, advisor, or other active participant in the affairs of a party, except that:

(i) ownership in a mutual or common investment fund that holds securities is not a “financial interest” in such securities unless the judge participates in the management of the fund;

(ii) an office in an educational, religious, charitable, fraternal, or civic organization is not a “financial interest” in securities held by the organization;

(iii) the proprietary interest of a policyholder in a mutual insurance company, or a depositor in a mutual savings association, or a similar proprietary interest, is a “financial interest” in the organization only if the outcome of the proceeding could substantially affect the value of the interest;

(iv) ownership of government securities is a “financial interest” in the issuer only if the outcome of the proceeding could substantially affect the value of the securities;

(d) “proceeding” includes pretrial, trial, appellate review, or other stages of litigation.

(4) Notwithstanding the preceding provisions of this Canon, if a judge would be disqualified because of a financial interest in a party (other than an interest that could be substantially affected by the outcome), disqualification is not required if the judge (or the judge’s spouse or minor child) divests the interest that provides the grounds for disqualification.

(D) Remittal of Disqualification. Instead of withdrawing from the proceeding, a judge disqualified by Canon 3C(1) may, except in the circumstances specifically set out in subsections (a) through (e), disclose on the record the basis of disqualification. The judge may participate in the proceeding if, after that disclosure, the parties and their lawyers have an opportunity to confer outside the presence of the judge, all agree in writing or on the record that the judge should not be disqualified, and the judge is then willing to participate. The agreement should be incorporated in the record of the proceeding.

Canon 4: A Judge May Engage in Extrajudicial Activities That are Consistent With the Obligations of Judicial Office

Complete separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the society in which the judge lives. As a judicial officer and a person specially learned in the law, a judge is in a unique position to contribute to the law, the legal system, and the administration of justice, including revising substantive and procedural law and improving criminal and juvenile justice. To the extent that the judge’s time permits and impartiality is not compromised, the judge is encouraged to do so, either independently or through a bar association, judicial conference, or other organization dedicated to the law. Subject to the same limitations, judges may also engage in a wide range of non-law-related activities.

Within the boundaries of applicable law (see, e.g., 18 U.S.C. § 953) a judge may express opposition to the persecution of lawyers and judges anywhere in the world if the judge has ascertained, after reasonable inquiry, that the persecution is occasioned by conflict between the professional responsibilities of the persecuted judge or lawyer and the policies or practices of the relevant government.

A person other than a spouse with whom the judge maintains both a household and an intimate relationship should be considered a member of the judge’s family for purposes of legal assistance under Canon 4A(5), fund raising under Canon 4C, and family business activities under Canon 4D(2).

Canon 5: A Judge Should Refrain From Political Activity
Compliance with the Code of Conduct

(A) General Prohibitions. A judge should not:

(1) act as a leader or hold any office in a political organization;

(2) make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office; or

(3) solicit funds for, pay an assessment to, or make a contribution to a political organization or candidate, or attend or purchase a ticket for a dinner or other event sponsored by a political organization or candidate.

(B) Resignation upon Candidacy. A judge should resign the judicial office if the judge becomes a candidate in a primary or general election for any office.

(C) Other Political Activity. A judge should not engage in any other political activity. This provision does not prevent a judge from engaging in activities described in Canon 4.

Q.  Recently, there has been controversy over U.S. Supreme Court Justices Thomas Clarence and Samuel Alito accepting lavish gifts from billionaires with conservative political values, including vacations, private school tuition for Justice Thomas’ grandnephew, and a $267,000 motor coach for Thomas to “slip away from the meanness that you see in Washington.” Some members of Congress have called for U.S. Supreme Court justices to adopt a Code of Conduct.  Why doesn’t the Supreme Court have to follow a code of ethics?

      Congress created the Judicial Conference which adopted the Judicial Code of Conduct in 1973 to manage lower federal courts, and not the U.S. Supreme Court which is a body created by the U.S. Constitution. The Supreme Court’s nine justices are the only federal judicial officers who are not subject to a specific and binding code of ethics.  The only code of conduct that could govern the U.S. Supreme Court is one that it adopts for itself.

However, there are three ethics-related statutes that appear to apply to U.S. Supreme Court Justices:

  • Ethics in Government Act (5 U.S.C. Section 13101, et al.)

The Ethics in Government Act requires numerous categories of federal officials, including Supreme Court Justices, to file annual financial disclosure forms which detail outside income and spouses’ sources of income, among other things. Sanctions for violation of the Act include civil and criminal penalties, although a Supreme Court Justice has never been charged with violating the Act and proceedings involving lower court judges are exceedingly rare.

There was an exemption for “personal hospitality” to allow officials to accept invitations to travel, dine and stay with friends without having to report it. In March 2023, the Judicial Conference issued new guidelines for “personal hospitality” requiring disclosure of travel by private jet and stays at commercial properties like resorts. 

  • Ethics Reform Act (5 U.S.C. Section 7353)

The Ethics Reform Act prohibits judges from soliciting or accepting gifts from anyone seeking official action from, or doing business before, their court, or from any other person whose interests may be substantially affected by the performance or nonperformance of the judicial officer’s official duties. Penalties for violations consist mainly of administrative and disciplinary action and a Supreme Court Justice has never been charged with violating the Act.

  • Disqualification Statute (28 U.S.C. Section 455)

The Disqualification Statute requires all federal judges to recuse themselves from any judicial proceedings where their impartiality might reasonably be questioned, including when their spouse or other member of their household or immediate family has “any other interest that could be substantially affected by the outcome of the proceeding.”

Since U.S. Supreme Court justices decide for themselves whether recusal is required and do not need to provide any explanation for why, there is no way to really enforce this.

To learn more about this subject, tune into this video podcast.

Disclaimer:  this material is intended for informational purposes only and does not constitute legal advice.  The law varies by jurisdiction and is constantly changing.  For legal advice, you should consult a lawyer that can apply the appropriate law to the facts in your case.