Keeping Prudence in Jurisprudence: Researching Judicial Officers

Welcome to the December 2021 edition of our newsletter!  In this issue, we’ll examine the potential for conflicts of interest among members of the judicial branch, and resources that exist to help identify them.

Calling Balls and Strikes?  The Tension Between Impartial Justice and Human Nature

A core principle of the American democratic system of justice is that judges impartially interpret the law, and in many instances this is what occurs.  But judges are also people, with vested interests, families and futures to plan.  This can create the opportunity for conflicts of interest to arise between a judge’s personal conduct and their professional approach.

Guardrails already exist, including recusal processes in which a judge will either identify a reason they should not hear a case, or counsel for one of the parties involved will bring it to their attention.  Yet media coverage of undisclosed conflicts, in which judges did not recuse themselves, has brought renewed attention – and Congress has taken notice.  One proposal has called for expediting publication of judicial financial disclosure forms, which are often made public many months after filing.  These forms typically detail any speaking fees or other honoraria received; any outside affiliations, such as professorships; and investment holdings.

Other, more controversial proposals, include establishing a “code of conduct” for judges, which some argue would violate the separation of powers between the legislative and judicial branches.  Yet if a client needs to determine if conflicts exist, tools are already in place.  For example, what does the judge’s spouse do for a living, and could that affect their decision-making?  Has the judge recused himself in prior circumstances because of it?  Judges also typically have long careers in other fields, such as law or political and civic advocacy, before obtaining a seat on the bench.  What do their prior positions identify about concerns that might affect future rulings?

All parties should seek impartial and fair treatment under the law, and in many cases that is what occurs.  Yet human nature can create gray areas in which even judges can operate, and if concerns arise, a thorough inquiry into a jurist’s history may be in order.