Monday, November 13, 2023

Yeah, About That...



 "A Justice should and comply with the law and comply at all times that promotes public confidence in the integrity and impartiality of the judiciary."

As Roger Weisand points out: 

The ABA's model ethics code: "a judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety."

SCOTUS "code": this, but "should."

The difference between lightning and the lightning bug?  No; between "enforceable" and "unenforceable." As emptywheel asked:

Why would Clarence Thomas adhere to a code of conduct w/no enforcement mechanism when he doesn't even comply with disclosure requirements?

To quote Professor Vladeck:

For me, the issue has never been the Court's "failure to enact a formal ethics code"; it's the extent to which there is no means by which we can have any confidence that *whatever* rules apply to the justices are actually being followed.

Today doesn't move *that* needle at all.

Because:

Nothing in the 14-page document, or the one-page cover note, addresses the elephant in the room:

*Whatever* rules the justices *say* they are bound to follow, *who* is going to enforce those rules—and how? 

Quis custodiet ipsos custodes?

(Professor Vladeck suggests Congress create an Article III Inspector General, to be appointed to office by the Court, but with authority to enforce the ethical guidelines of the Court, much as is done for federal judges and for all lawyers who hold a license under state law. This avoids the seperation of powers issue the Court likes to stand on (imperiously, IMHLO). I'm guessing friends of Clarence Thomas in the Senate will not soon let this happen.)

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