Disfavoring Justice

56 Pages Posted: 17 Jan 2019

See all articles by Ray McKoski

Ray McKoski

University of Illinois Chicago School of Law

Date Written: January 6, 2019

Abstract

Alexander Hamilton and Thomas Jefferson agreed on very little. They did agree, however, that the institutional legitimacy of the courts depends on public confidence in the judiciary. Today, building public trust in the third branch of government is the overarching principle of every code of judicial conduct. Unfortunately, most proposals intended to enhance the public’s trust in the courts fail because they carry partisan baggage. For example, the profession’s crusade to improve the judiciary by convincing the states to move from an elected to an appointed judiciary has fallen flat. No state has moved from elected to appointed judges in the last thirty years. Increasing public trust in the judiciary cannot be achieved by choosing sides in highly divisive, partisan issues such as judicial selection.

Proposals to enhance public trust must be non-partisan and remedy a deficiency universally viewed as inimical to a just legal system. Thomas Jefferson identified such a consensus evil when he observed that judges not only may be tempted by bribery, but may be “misled by favor, by relationship, by a spirit of party, by a devotion to the Executive or Legislative.”

All federal and state judicial ethics codes incorporate Jefferson’s counsel by barring judges from using their official positions to advance private interests. Nevertheless, judges repeatedly misuse their power and prestige to advantage themselves, family, friends, and even strangers. This article addresses the most insidious form of exploitation of judicial status—intervention by judges into adjudicatory and investigatory proceedings to affect a favorable outcome for “connected” people.

Part I defines the problem. Part II catalogs the provisions of the four ABA model judicial codes prohibiting the misuse of judicial power and prestige. Using New York State as an example, Part III demonstrates the seemingly perpetual abuse of the judicial office to improperly intervene in adjudicatory and investigatory matters. Part IV discusses possible explanations for the misuse of judicial power and prestige including quid pro quo arrangements, incompetence, narcissism, confusion of morality roles, and an overdeveloped sense of entitlement. Finally, Part V suggests a non-partisan, non-controversial, and cost-free approach to combat exploitation of the judicial office, thereby increasing the public’s faith in the impartiality and integrity of the judiciary.

Keywords: judicial ethics, judicial conduct, judicial discipline, judges, courts, model code of judicial conduct, judicial impartiality, judicial prestige, entitlement

JEL Classification: K40, K42

Suggested Citation

McKoski, Ray, Disfavoring Justice (January 6, 2019). University of Cincinnati Law Review, Vol. 87, No. 2, 2019, Available at SSRN: https://ssrn.com/abstract=3311172

Ray McKoski (Contact Author)

University of Illinois Chicago School of Law ( email )

315 South Plymouth Court
Chicago, IL 60604
United States

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