The Intersection of Judicial Ethics and Racial Justice

The Intersection of Judicial Ethics and Racial Justice

“Now, this country is a constant work in progress. We were born with instructions: to form a more perfect union. Explicit in those words is the idea that we are imperfect; that what gives each new generation purpose is to take up the unfinished work of the last and carry it further than anyone might have thought possible.” 1

Within the last six months, the United States has undergone what feels like two seismic shifts that have shaken us to our national core—the first being the onset of the novel coronavirus, and the second being the death of George Floyd. Both events magnified racial inequities and thrust us into a much-needed conversation about race, equality, and justice. As these conversations are occurring throughout the country, a noticeably absent voice is that of the judiciary. The judiciary’s silence is not surprising, as historically judges have refrained from commenting on events that may dominate the news cycle.

This silence is, in part, because judges are governed by ethical rules that are meant to promote public confidence in the integrity and impartiality of the judiciary. Judicial canons that order judges not to be “swayed by partisan politics, public clamor or fear of criticism”2 and prohibit them from engaging in extrajudicial activities that cast doubt on the “judge’s capacity to act impartially as a judge”3 have left judges hesitant to comment on issues like racial justice. So this spring when the country erupted in protests and calls for action in the wake of George Floyd’s death, judges largely remained silent, declining to make any public comment about issues such as police brutality, over-policing of minority communities, and inequities in all levels of the justice system.

Even as I type the words “police brutality,” I struggle with whether as a judge I should use the phrase in this article. As the conversations surrounding racial justice grow louder and louder, judges are beginning to use their voices to weigh in; however, they are still struggling to navigate the waters of how best to do that while maintaining the impartiality that the bench demands. Indeed, the success of our tripartite government was founded on the concept of checks and balances, including the independence and impartiality of the judiciary.

A recent opinion by Judge Carlton Reeves (United States District Judge for the Southern District of Mississippi) demonstrates that finding the balance is not an impossible task. Judge Reeves opined that while the defendant in the case was legally entitled to qualified immunity, the harm suffered by the plaintiff was significant and the status quo relating to qualified immunity is “extraordinary and unsustainable.”4 He applied the binding precedent that required dismissal of the claims against an officer who had “transformed a short traffic stop into an almost two-hour, life-altering ordeal,” but Judge Reeves warned that we should “not be fooled by legal jargon [because] [i]mmunity is not exoneration. And the harm in this case to one man sheds light on the harm done to the nation by this manufactured doctrine.”5 In this scathing criticism

of qualified immunity and the unequal application of our nation’s laws, Judge Reeves shows us that a judge can lend his voice and unique perspective to acknowledge issues in our justice system that need to be re-examined, and still maintain impartiality and equitably apply the law. Recognizing that there is a difference between being impartial and promoting confidence in impartiality, judges will continue to struggle with how and when to use their voice to promote equality in our legal system. While the canons afford us the right to remain silent, should we?

If what is said or done by a judge can be used to cast any doubt on her ability to act impartially, then she should not say or do it. Yet, under the Texas Code of Conduct, judges are allowed to “speak, write, lecture, teach, and participate in... activities concerning the law, the legal system and the administration of justice,” provided that in doing so the judges do not cast doubt on their “capacity to act impartially” on any matter that may come before them.6 Herein lies this intersection of judicial ethics and giving voice to racial injustice, or more aptly stated—giving voice to equality.

This intersection is one of tension between the desires of a judge to remain engaged in her community and her responsibility to be and appear to be impartial. This intersection is profound because when our founders formed America’s judiciary, they did not anticipate that minority female judges would one day exist. This begs the question of whether in becoming a more diverse community and consequently judiciary, we are challenged to review a code of ethics/conduct that did not contemplate such growth. The tension created between the ability to “speak, write, lecture, teach and participate in extra-judicial activities concerning the law” while not casting reasonable doubt on the judge’s capacity to act impartially necessitates continued discussion because we have an increasingly diverse judiciary (and society) grappling with racial inequality and undertones of a caste system like never before. In the evolving work of

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democracy toward a more perfect union, how must the judiciary evolve? There was a time when the intersection of judicial ethics and racial justice did not even exist. We conclude however, that the tension that arises at that intersection is a part of the work of progress toward a more perfect union.

The Hon. Genesis E. Draper presides over the Harris County Criminal Court at Law No. 12, and The Hon. LaShawn A. Williams presides over the Harris County Civil Court at Law No. 3.

endnotes

1. Fmr. President Barack Obama, Eulogy at Funeral of

Rep. John Lewis (July 30, 2020), in N.Y. TIMES, July 30, 2020, https://www.nytimes.com/2020/07/30/us/ obama-eulogy-john-lewis-full-transcript.html. 2. TEX. CODE OF JUDICIAL CONDUCT, Canon 3(B) (2) (2019). 3. Id. at Canon 4(A)(1). 4. Jamison v. McClendon, No. 3:16-CV-595-CWR-LRA, 2020 WL 4497723, at *29 (S.D. Miss. Aug. 4, 2020). 5. Id. at *3. 6. TEX. CODE OF JUDICIAL CONDUCT, Canon 4(A)–(B).

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