Evaluating Judicial Standards of Conduct in the Current Political and Social Climate: The Need to Strengthen Impropriety Standards and Removal Remedies to Include Procedural Justice and Community Harm

By Kastenberg, Joshua E. | Albany Law Review, Summer 2019 | Go to article overview

Evaluating Judicial Standards of Conduct in the Current Political and Social Climate: The Need to Strengthen Impropriety Standards and Removal Remedies to Include Procedural Justice and Community Harm


Kastenberg, Joshua E., Albany Law Review


In 1964, Richard Hofstadter published "The Paranoid Style in American Politics" in Harper's Magazine in which he characterized the United States' political life as being immune from the more egregious effects of class conflict. (1) Hofstadter was one of the twentieth century's foremost American History scholars, and he argued that the fact that the United States did not turn to fascism or communism during the twentieth century's crisis times stood as a testament to the nation's institutional strengths. (2) Yet, he also noted that politics served "as an arena for uncommonly angry minds" and in turn, this enabled a "small minority" to possess ample political leverage so that their "animosities and passions" were incorporated by one of the nation's two major political parties. (3) Using 1964 presidential contender, Senator Barry Goldwater's supporters as an example, Hofstadter contended that one of the central characteristics of the "small minorit[ies]" was their insistence that the nation's elites had persecuted them, and whether or not the majority understood this to be true, they too were the victims of the persecution. (4) Although Hofstadter noted that there were "angry" historical movements across the political spectrum, the modern right wing's adherents--as he termed them in 1964--believed themselves dispossessed, and their country having been taken from them. (5) Similar themes were expressed by President Donald Trump in the 2016 presidential campaign. (6)

Hofstadter wrote in broad themes and he focused on the nation's broad political system rather than a component part of it, such as the population's relationship to a branch of government. (7) His observations and conclusions remain relevant today, though it is worthwhile to analyze the effect and relationship of a "small minority" to a particular branch of government. (8) In this regard, there is question as to whether the fifty state judicial branches are internally policed to minimize the possibility that modern "right wing" populism will undermine judicial independence and impartiality. Although political scientists will define modern populism differently, (9) for the purpose of this Article, the United States' current experience with populism includes sweeping resentments against minority groups (and in particular immigrants from non-European regions), political elites, and attacks on longstanding political institutions. (10) And, as a caveat to this study, similar concerns would be raised if a modern "left-leaning" populism had succeeded in national politics. (11)

The problem of public trust in a fair judiciary is not new. In 1970, Chief Justice Warren Burger observed, "A sense of confidence in the courts is essential to maintain the fabric of an ordered liberty for a free people." (12) While this statement may be nothing more than aspirational, Burger warned that when "people who have long been exploited... come to believe that courts cannot vindicate their legal rights from fraud," an "incalculable damage [is done] to society." (13) It could be added that "exploitation" includes influencing people to deflect attention from the actual sources of exploitation to imaginary or tangential sources, which also may do damage to judicial institutions. (14)

A number of state supreme courts have held that judicial service requires a judge not only to be "learned in the law," but also to adjudicate cases or appeals in a fair and impartial manner. (15) When a judge takes an oath of office, he or she accepts a mandate of performing judicial duties in a conscientious and impartial manner. (16) The impartiality requirement is both ancient and embedded in American jurisprudence. (17) The judicial duty of impartiality also extends to both actual impartiality and the appearance of impartiality. (18) While the oath of judicial office may appear to be a simple ministerial act, the current political and cultural climate of "right-wing" populism has brought forth the possibility that judicial standards of conduct as embodied in oaths are, in some instances, not enforceable to a degree that will preserve the impartiality mandate. …

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