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.