The Texas Commission in Judicial Conduct has formally admonished Justice Nathan Hecht for his efforts to promote the candidacy of Harriet Miers to the Supreme Court last year. Here are the relevant standards:
1. Canon 2B of the Texas Code of Judicial Conduct states, in pertinent part: “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.”
2. Canon 5(2) of the Texas Code of Judicial Conduct states, in pertinent part: “A judge or judicial candidate shall not authorize the public use of his or her name endorsing another candidate for any public office, except that either may indicate support for a political party.”
According to the Commission’s opinion, Justice Hecht violated both Canons:
The Commission concludes from the facts and evidence presented that Justice Hecht allowed his name and title to be used by the press and the White House in support of his close friend, Harriet Miers, a nominee for the office of United States Supreme Court Justice. Such public support by a judicial official elected to the highest court in Texas, in the eyes of the public and the rest of the judiciary, would be construed as an endorsement of Miers’ candidacy, as those terms are commonly used and understood. Because the Commission views Miers’ desire for a lifetime appointment to the United States Supreme Court to be a private interest, the efforts of Justice Hecht in promoting his friend’s candidacy by responding to media inquiries and assisting the White House in its efforts to convince powerful special interest groups to support her candidacy, constituted an improper use of his office and position to promote Miers’ private interest.
I am not a legal ethics expert, and I confess that some of Justice Hecht’s behavior during the Miers nomination left me quite uncomfortable. At the same time, this analysis strikes me as pretty weak. Is it really a breach of these ethics canons for a judge to support someone who was nominated for a position as United States Supreme Court Justice? If you believe someone would be a great Supreme Court Justice, is it really helping that person’s “private interests” to support their candidacy? And is a position as a Supreme Court Justice a “public office” for purposes of the ethics requirement, or does “public office” imply elected office? Again, I’m not a legal ethics expert, but the Commission’s analysis strikes me as pretty weak.
Such public support by a judicial official … would be construed as an endorsement of Miers’ candidacy, as those terms are commonly used and understood.
Huh? Since when was “candidacy” “commonly used and understood” to mean a nomination to the U.S. Supreme Court? Candidate clearly implies a candidate for elective office – not a SCOTUS nominee. Or maybe I’m wrong. (Where are the election law experts? Do laws governing candiates for office also cover judicial nomiees?)
In any event, shouldn’t the burden of persuasion fall upon the body punishing someone? I am not persuaded. The court’s analysis is weak and unpersuasive, “as those terms are commonly used and understood.”
Pingback: The Volokh Conspiracy
As I read the opinion (not just the part Orin quotes), Texas defines the word “candidate” to include any candidate for judicial office. For Texas judges, this means elected judges, but I gather from the opinion that it also encompasses candidates for the courts of other sovereigns, regardless of what method that sovereign uses to select its judges.
I believe this is the best reading of the opinion because it refers to Justice Hecht as a “judicial candidate himself” in a context implying that this makes him analogous to Harriet Miers. It’s not much to go on, but it’s also a very short opinion.
I believe it is reasonable to consider a SCOTUS nominee to be a candidate for elective office. Is there no election involved? Just because the electors are Senators does not change the fact that an election is taking place. Even in the Constitution, what we think of as an elective office was not necessarily chosen by the People (compare Article I, Sections 2 and 3).
And also, as to one of Orin’s points: just because you think someone would be good in a particular office, that doesn’t negate the fact that attaining said office would be in that person’s “private interest.” Many things can have both a public and a private benefit, and those benefits need not be cancelled out, one by the other.
Pingback: ACSBlog: The Blog of the American Constitution Society
Helping someone to land a job is advancing their private interests, whether or not you happen to believe that the world would be a better place if they got the job. The public/private issue doesn’t have to be an either/or distinction.
Ian: I read the terse opinion (as I always do before commenting on them, though the “guts” Orin quotes is all anyone needs to read.) It is a disgrace. It’s short. Not short as in short-and-to-the-point, but short and poorly analyzed. I see at least two ways of proving that Harriet Meirs was a “candidate.”
Two ways of proving this:
1. By definition. Show that “candidate,” under state or federal law, is defined to cover people who are being nominated for office. That’s simple, right? Instead, the panel says Miers is a candidate as “as those terms are commonly used and understood.” That’s weak. The commission’s usage of that phrase means one of two things: a) they didn’t think it through; b) they couldn’t find legal support for their position, so they took the refuge of scoundrels and hid behind “common knowledge.” (Well, even if I can’t back this up, it’s common knowledge.)
2. By analogy. Turn to Texas campaign finance law. Find out who is appointed in Texas vs. who is elected. Determine whether people who are appointed are covered under the law.
The commission’s poorly analyzed opinion is an embarassment. If you submitted that as a project in law school, you would get a “C-.” (With the prof. saying, “More analysis, please.”) A partner at a law firm would throw it in your face.
You do not put a good person’s name through the mud of an ethics violation proceeding unless your arguments are solid. The panel’s arguments (at least on the candidate issue) are shaky.
Mike~
I agree with you that the opinion is poorly written (although I take issue with your characterization of Hecht as a “good person”), but this says nothing of the merits of the Commission’s result.
The problem with this opinion is that it does not tell us either way whether Texas law views a political appointee as a “candidate” for the purposes of speech by judges and judicial candidates. It may be right; it may be wrong. We don’t know.
My hunch is that this is a question of first impression, in which case the Commission, as the first quasi-judicial body to hear this issue was fully within their rights to resolve it the best way they can. If this is the case, they were wrong not to give their detailed reasoning, because such reasoning is most important in cases of first impression where a panel’s decision represents the only law on the issue, but it still does not tell us whether or not the ultimate result is correct.
1. Canon 2B of the Texas Code of Judicial Conduct states, in pertinent part: “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.”
What about judges testifying in the Senate Judiciary hearing on a nominee? I know there was much debate in the Alito hearing due to the panel of current judges, but is anyone arguing these judges should be admonished? It seems to me having highly respected judges testifying to congress advances the private interest of then Judge, Alito.
Also, would supporting Miers have brought admonishment had she actually been confirmed? That is, is there a difference (de facto) between supporting a nominee that the congress consents to, and one that resigns over questions of her qualifications?
Frank~
I don’t believe any of the judges who testified on Alito’s behalf were members of the Texas State Judiciary, so Canon 2B is not applicable to them.
Where the Texas rule does apply, Canon 2B does not excuse a violation because the judge lent their prestige to successfully advance the private interests of the judge or others, so the confirmation or lack thereof of Miers is irrelevant.
The code of conduct for federal judges contains the same prohibitions. But are we really to think that Justice O’Connor violated these rules when she said that the Roberts nomination was “good in every way, except he’s not a woman”?
Supreme Court clerks make a lot of money when they go into private practice. Do Justices who allow their clerks to take such jobs on the way out “lend the prestige of judicial office to advance the private interest of … others”?
Pingback: SCOTUSblog
Ian,
I apologize, Canon 2b of the Federal Canon states: B. A judge should not allow family, social, or other relationships to influence judicial conduct or judgment. A judge should not lend the prestige of the judicial office to advance the private interests of others; nor convey or permit others to convey the impression that they are in a special position to influence the judge. A judge should not testify voluntarily as a character witness.
I’d say this, to a greater degree than the Texas Canon forbids such activity.
Mike asks “since when was ‘candidacy’ ‘commonly used and understood’ to mean a nomination to the U.S. Supreme Court?” I fear that you are overthinking this; the plain meaning of “candidate” is far broader than you suggest: “[a] person who seeks or is nominated for an office, prize, or honor“; “one that aspires to or is nominated or qualified for an office . . . one likely or suited to undergo or be chosen for something specified [e.g. a candidate for surgery.”
I’m confused about the “lend the prestige of the judicial office” part of the prohibition. Does that mean that he had to say “I’m a TX SC justice and I think she would be great” or does any communication he makes automatically use the prestige of his position? Can a TX judge never comment on the nomination/ candicacy of a friend or former colleague?
If not then that seems really wrong. Can someone set me straight as to what I’m missing?
I agree with you that the opinion is poorly written (although I take issue with your characterization of Hecht as a “good person”), but this says nothing of the merits of the Commission’s result.
Perhaps we have differing views on how these bodies should work? My view is process-based. If an opinion is poorly analyzed, the opinion is “wrong.” Why? Because under my view of how the law is supposed to work, judicial and quasi-judicial bodies reason from premises to conclusion. A good opinion must have a both develop and prove its premises. The commission’s opinion failed to do so. It simply relied on good old fashioned “common sense.”
Given that the premises were not proven, how can we know whether the conclusion is correct? We can’t. Which is why the opinion is unsettling.
What’s worse is that the commission has the burden of demonstrating that the judge’s conduct was unethical. Putting aside the outcome, do you think that the commission’s opinion is persuasive?
Ian and Frank,
The Committee on Codes of Conduct is authorized by the Judicial Conference of the United States to publish formal advisory opinions on issues frequently raised or issues of broad application. They have actually issued an advisory opinion relating to howfederal judges should act when becoming involved in nominating/confirmation process for Article III judges. I didn’t follow what the sitting judges said in the Alito hearings closely but I suspect that what they said fell within the guidelines set forth in that advisory opinion. Specifically, it advises federal judges that they may participate in the nominating process by cooperating with “appointing authorities” which means “the President and Senators and their selection committees or commissions.”
You may also recall that there was a federal judge involved in the Dobson call (among other things) I suspect that his activities ran afoul of the guidelines advisory opinion. The advisory opinion admonishes judges that “the judge should not lend his or her name to any publicity campaign for any candidate.”
Does anyone know the politics of this action by the Commission? The Commission is made up of 11 members: 5 judges (one appellate judge, one district judge, one county court-at-law judge, one justice of the peace, and one municipal court judge), all named by the Supreme Court; 2 lawyers (who must each have ten consecutive years of practice in Texas) named by the State Bar; and 4 public members (who must be at least 30 years old and not licensed to practice law) named by the Governor. Each appointment is subject to the advice and consent of the State Senate. Members serve 6-year terms. The members elect their own chair.
Since the Texas SC and the governor are Republicans one who assume that the Commission is Republican. Hecht is a hard right pro-business judge. In this conservative state the Democrats don’t have the clout to get this kind of thing done. Is it payback, because the right thought Miers was too liberal? Was he told to stay out of it and didn’t? There is certainly more politics than law in this deal.