Jul. 31, 2020
Judicial ethics and independence must guide judges’ responses to racial injustice
In California the judge’s Oath of Office begins, “I solemnly swear that I will support and defend the Constitution of the United States and the Constitution of the State of California.” The first Canon of the California Code of Judicial Ethics states, “A judge shall uphold the integrity and independence of the judiciary.” Support. Defend. Uphold. These are words of action, not omission.
In California the judge's Oath of Office begins, "I solemnly swear that I will support and defend the Constitution of the United States and the Constitution of the State of California." The first Canon of the California Code of Judicial Ethics states, "A judge shall uphold the integrity and independence of the judiciary." Support. Defend. Uphold. These are words of action, not omission.
On July 20, the California Supreme Court Committee on Judicial Ethics Opinions responded to inquiries by California judges who sought ethical guidance about their moral obligations at this point in history. In response to recent, national events that have brought critical focus to issues of race, social justice, and the First Amendment, some judges want to participate in demonstrations that denounce racism, support equal justice, and reinforce constitutional rights to free speech and peaceable assembly. In an effort to answer these questions and provide guidance, the committee issued CJEO Formal Opinion 2020-14. The opinion does not explicitly forbid California Judges from participating in public demonstrations, but unlike the June 9 California Judges Association Ethics Committee Chair's Guidance on this same topic, the CJEO committee discouraged participation because it concluded it is fraught with ethical risk. We are judges who are committed to our ethical obligations under our Oath of Office, and the Code of Judicial Ethics, and we believe that in this instance, the perspective of the CJA guidance provides judges with clearer direction, and more properly defers to each judge to decide how to personally uphold the integrity and independence of the judiciary.
The CJA guidance posed six questions and provided succinct, clear responses. The first question was: "May a judge participate in a peaceful protest during non-court time?" "Yes" was the response. "Yes" was also the answer to the question of whether "During a protest, may a judge 'take a knee' or perform similar actions?" The CJA guidance briefly clarified, stating that because judges are "not required to surrender [our] rights or opinions as citizens" judges "like anyone else" may march in peaceful protests on their own time, provided they do not identify themselves as judges or otherwise "take actions that may appear to compromise the integrity or impartiality of the judge or the judiciary."
Perhaps the CJEO committee provided more restrictive advice because it framed the question differently than the CJA guidance. The committee asked: "May judicial officers ethically participate in public demonstrations and rallies about racial justice and equality, or make public statements about those matters, under the Code of Judicial Ethics?" In response to this question, which presumes that judicial inaction is the ethically preferable baseline, the committee warned: "Judges may not participate in a public demonstration or rally if [the] participation might undermine the public's confidence in the judiciary." Throughout the opinion the committee invoked the text of the Judicial Canons and the related advisory commentary that follow them. Although the committee acknowledged that "Complete separation of a judge from extrajudicial activities is neither possible nor wise" and "a judge should not become isolated from the community in which he or she lives" the committee nevertheless provided a litany of potential ethical perils that may befall a judge who joins a community demonstration. It reminded judges that they are subject to "constant public scrutiny" and that the test for impropriety, "is whether a person aware of the facts might reasonably entertain a doubt that the judge would be able to act [in the performance of their judicial duties] with integrity, impartiality, and competence."
It appears that the committee approached this issue no differently than the way it would examine any potential controversial legal issue a judge might encounter on the bench. Outside of writing judicial opinions, a judge should not publicly comment on substantive issues the judge may need to decide in court -- this may include existing or proposed legislation in areas as diverse as securities, environmental regulation, and bond measures. But there is a fundamental difference between a judge commenting on an issue that may be the subject of a legal dispute versus a judge publicly supporting the core constitutional principle that all people are equal under the law. The former is improper. The latter is not up for legal debate and no judge should be ethically constrained from speaking or taking action that reinforces that constitutional and moral imperative. Instead, a judge is ethically obligated to affirmatively defend and uphold the Constitution, not complacently remain silent. At New Judge Orientation, judges are taught that even during a small social gathering it is unacceptable for a judge to say nothing in response to a racist remark because others may reasonably interpret our silence as approval. That insidiousness grows exponentially when judges fail to publicly stand against racial injustice in our communities and our nation.
The CJEO opinion also noted that the canons prohibit a judge from engaging in political activity. It cautioned that, "Although such demonstrations and rallies [about racial justice and equality] are not necessarily partisan, they address matters that are the subject of current debate and litigation and can relate to subjects over which passions run high." It is immaterial whether individuals or elected officials have expressed opinions about racism or equality. No political party is devoid of racism. Racially charged rhetoric, regardless of the speaker, does not make equal protection a political issue and it is troubling that the formal opinion referred to racial justice as a matter that is subject to current debate.
Judges are not members of a legal monastery who should be sequestered from engaging their community on critical issues of law, equity and equality. An outstanding example is our Chief Justice Tani Cantil-Sakauye who is a leader in civics education. Last year she received the Sandra Day O'Connor Award for Advancement in Civics Education in part due to her work inspiring California judges to engage with public school students about democracy, civics and justice. Judges also teach at colleges and law schools, write academic and newsworthy articles, and testify in legislative proceedings about issues of law, justice and access to our courts. The Judicial Canons, which seek to protect the reputational integrity, independence and neutrality of the judiciary, are premised on the view that every judge is a guardian of justice who serves as a role model and leader in the community. Our branch of government, particularly in California, is proudly diverse (race, gender, religion, age, sexual orientation, etc.), and that diversity symbiotically reinforces that we are not mere observers in the fight for racial justice and equality locally and nationally. Everything judges do in their personal and professional lives must demonstrate the absence of bias or prejudice, promote confidence in the judiciary, and exemplify integrity, which the Canons define as an "uprightness, and soundness of character." It is a fallacy to think our communities will have confidence in a judiciary that lacks the integrity to actively repudiate racism or threats to our constitutional rights. For those of us who have school-aged sons and daughters, it is also fair to assume that our communities will not lose confidence in the uprightness of our character if we elect to hold the hands of our children when they walk in a public demonstration for equality and justice.
The committee's opinion acknowledged that judges may feel a moral obligation to act, and quoted the California Supreme Court's June public Statement on Equality and Inclusion that succinctly and eloquently asserted:
"We state clearly and without equivocation that we condemn racism in all its forms: conscious, unconscious, institutional, structural, historic, and continuing. We say this as persons who believe all members of humanity deserve equal respect and dignity; as citizens committed to building a more perfect Union; and as leaders of an institution whose fundamental mission is to ensure equal justice under the law for every single person."
The committee stated that judges are ethically permitted to follow suit, urging that because, "judges can maintain control of the substance and tone of a written statement, a writing that addresses issues of racial justice and equality may present fewer ethical risks than participating in a public demonstration or rally on those same issues." It is true that a measured, written statement can be powerful, and it poses fewer ethical risks than participating in a public demonstration. But the committee's opinion elevates fear of running afoul of ethical rules over the judicial courage to stand for what our oath, the Constitution, and our individual morals may demand of us.
The CJA guidance was correct when it reminded judges that, "there are no special Social Justice Ethics to learn. We simply apply our current Code of Ethics, along with a healthy dollop of common sense." That advice allows for straightforward answers to these ethical questions: May judges publicly speak, write or act to condemn racism and to uphold the rights guaranteed by the First Amendment? Yes. May judges participate in demonstrations that denounce racism, support equal justice, and reinforce our constitutional rights to free speech and peaceable assembly? Yes. Are there some inherent ethical hazards in that participation? Yes, but as judges we are expected, as we are expected in all situations, to use our independence, integrity and sound judgment to navigate those risks.
Hon. Rita F. Lin
Hon. Jennifer S. Madden
Hon. Christine Van Aken