Patterico's Pontifications


It’s One A.M. Do You Know Where the Code of Conduct for U.S. Judges is?

Filed under: General — Aaron Worthing @ 5:31 pm

[Guest post by Aaron Worthing; send your tips here.]

Former Supreme Court Justice Sandra Day O’Connor is still active as a senior status judge.  That means she will hear cases in the lower courts on occasion.  She also has been active in judicial selection reform.  As reports, however, this has all landed her in some trouble:

It began as an amusing story about a technical glitch in some automated phone calls that went out to voters in Nevada. But it has since turned into a discussion of judicial ethics involving retired U.S. Supreme Court Justice Sandra Day O’Connor and her passionate campaign in favor of judicial election reform.

A story in Monday’s Las Vegas Review-Journal reported that a significant number of Nevada voters received so-called automated “robo-calls” with the voice of O’Connor urging them to support a Nevada ballot initiative that would change the way Nevada judges are selected toward a merit selection/retention election system.

The problem was that the calls went out at 1 a.m. insted of the intended 1 p.m. time. The group sponsoring the calls has apologized profusely and the marketing company that made the error has been fired.

But conservative commentator Ed Whelan saw another problem: “Do the ethics rules governing federal judges really permit a federal judge to robocall voters in support of a ballot initiative?” In a National Review Online entry Whelan noted that Canon 5 of the Code of Conduct for United States Judges(pdf) prohibits them from engaging in political activity — except as permitted by Canon 4, which allows judges to speak to the public and to legislators about legal matters and the administration of justice.

Whelan, who also is president of the D.C.-based Ethics and Public Policy Center and a former law clerk to Justice Antonin Scalia, wrote that O’Connor’s personal advocacy of a ballot initiative is not the kind of legal discussion Canon 4 contemplates.

Ed Whelan and others at Bench Memos has indeed been all over this story for several days.  Really just go to October 27, 2010, and then work your way forward in time.  Its a lot of interesting stuff.

Anyway, the controversy eventually got to be big enogh to garnish a response from O’Connor:

I did not authorize the use of my recorded statement as part of automated telephone calls to Nevada residents, and I regret that the statement was used in this way. In addition, I view my efforts in support of judicial reform as consistent with the Code of Conduct for U.S. Judges.

Which is that special breed of explanation that still leaves questions unanswered.  Such as, “how the hell do you record a robo-call message and not realize it might be used in a robo-call?” for starters.

I don’t think O’Connor should resign, but I think she should tone down her activism on this issue.

[Posted and authored by Aaron Worthing.]

17 Responses to “It’s One A.M. Do You Know Where the Code of Conduct for U.S. Judges is?”

  1. She didn’t authorize the robocall, but she did nothing to stop it either (you would hope that people on the Supreme Court are smart enough to know how what they do is going to affect everybody in the United States, or least them personally). Oh, well, too late now for her.
    (Warning: anonymous comment!!! Ignore if stupid or pointless!!!)

    Bad Science (7193ce)

  2. garnish >> garner

    Andrew (7c683e)

  3. I recorded a statement but I didn’t think they were going to use it for something like THAT.

    Sandy baby, what did you think they were going to use it for?

    daleyrocks (940075)

  4. This is from “Stand With Arizona (and against illegal immigration)” on my Facebook page about O’Connor:

    “Sandra Day O’Connor, who this week joined a disgraceful 2-1 decision striking down Arizona’s 2004 voter ID law – which the entire 9th Circuit had previously UPHELD – has been playing politics on the side, interfering in an amendment fight in Nevada on the side of Harry Reid, among other inappropriate actions. O’Connor’s politically-motivated betrayal of her home state was repulsive enough. But her political activities are a violation of the Federal Code of Conduct and she should be removed immediately by Justice John Roberts.”

    Is anyone suprprised?

    PatAZ (9d1bb3)

  5. So let me see if I have this right…

    Justice O’Conner shouldn’t resign because Code of Conduct Canons…like Laws, Taxes, et al…are only for the little people, too.

    Man! do I ever have to move up the food chain!

    MJN1957 (6e1275)

  6. O’Connor is a lightweight, a disgrace. When you think of what Reagan could have done with that slot….

    Kevin Stafford (abdb87)

  7. O’Connor is a lightweight, a disgrace. When you think of what Reagan could have done with that slot….

    Unfortunately, Sarah Palin was only 17 at the time of the appointment.

    Anon Y. Mous (c9efca)

  8. How do you resign from retired?

    AD-RtR/OS! (f2f112)

  9. If anyone locates a copy of the Code of Conduct for Justices forward a copy to the SCOTUS and the 9th Circus first. They seem to have lost theirs.

    Scrapiron (4e0dda)

  10. Wow. Just the latest in the trend of conveniently tipping the scales to fit one’s needs. Sonya and ‘El’ and their activist views sort of taint the idea of judicial balance. Apparently anything goes.

    Vermont Neighbor (0f2d60)

  11. It’s been said that one advantage of Altzheimers is the ability to hide your own Easter eggs.

    Could Her High Holiness have ‘forgotten’ about doing the recording?

    Old Bob (14a1c9)

  12. Diliberate actions that have legal consequences can be undertaken if designed with deniability.She gives a new meaning to contempt of court.

    dunce (b89258)

  13. I don’t think O’Connor should resign, but I think she should tone down her activism on this issue.

    Isn’t there another option? What about a formal reprimand?

    Isn’t it interesting how she interprets all laws as matching her personal opinions?

    Amphipolis (b120ce)

  14. amph

    i don’t think even a senior status S.C. justice can be reprimanded by anyone, but i will confess i am not sure.

    Aaron Worthing (e7d72e)

  15. Well, the CJ could send her a sternly worded letter; and if that fails, recommend her for censure, as he could for any appellate justice (can’t he?).

    AD-RtR/OS! (273260)

  16. Lock her up in prison for 6 months, put her on parole, make her do 500 hours of community service cleaning toilets, and I’ll be satisfied.
    Short of that it’s just more of the criminals in charge, as usual.

    SiliconDoc (7ba52b)

  17. Hello, i think that i saw you visited my website thus i came to return the favor.I’m trying to find things to enhance my site!I suppose its ok to use a few of your ideas!!

    Balthasar (0d8733)

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