What is a judge to do if a judicial organization they belong to takes a political stand?
A judge who is also a member of the National Association of Women Judges can participate in a debate on a resolution for the organization to boycott having meetings in states that have ended discrimination protections based on sexual orientation or gender identity but could have problems continuing as a member depending on the language of the resolution and how it is published.
The Judicial Ethics Advisory Committee recently offered that advice to a judge who is a long-time member of the NAWJ. The judge was concerned about a resolution to be debated at a future association meeting that would have the organization refrain from holding meetings in states that have repealed protections against discrimination based on “sexual orientation, gender identity or gender expression” or passed laws that allow such discrimination or created exemptions from existing protections to allow such discrimination.
The NAWJ is a civic, bar, or law-related organization devoted to improving the law and legal system, and judges are encouraged to belong to such groups, the JEAC said. However, it can be problematic when such organizations take political positions and since the resolution appears to call for a boycott of some states, that is “a political statement on a current political issue.”
“The inquiring judge may discuss and debate the proposed resolution within the confines of NAWJ’s membership. There is no ethical prohibition to that kind of activity. Because the inquiring judge assures us that the deliberations and discussion on the resolution’s vote will remain within NAWJ and not be disseminated to the public, the judge is free to voice the judge’s views and opinions among NAWJ’s membership,” the committee said.
But the judge’s duty if and when the resolution passes depends on the language of the final resolution and how it is publicized, the committee continued. Judicial Canons 5A, 4A, and 2A require judges to conduct quasi-judicial activities in such a way that they do not undermine the appearance of the judge’s independence or impartiality or cast doubt on the judge’s impartiality. They also require the judge to act at all times in ways that “promotes public confidence in the integrity and impartiality of the judiciary.”
Past JEAC opinions have held that judges can belong to some — but not all — civic organizations that take occasional political positions, including ABOTA, the NAACP, the NRA, and the American Israel Public Affairs Committee.
This inquiry, the committee said, is unique because the NAWJ is a judicial organization and the committee has not addressed “the implication of a judicial organization espousing political statements on current laws.”
“The inquiring judge would have to carefully monitor the extent to which NAWJ’s resolution, should it pass, becomes a feature of public discussion or awareness, and whether the judge’s membership could be construed as evidence of partiality on topics to which that resolution pertains,” the committee said. “Moreover, if the unidentified laws that are the subject of the proposed resolution were ever challenged in a court proceeding, any judge who is a member of a judicial group that has actively advocated against such laws would seem to be in a position where the State may legitimately question the appearance of that judge’s impartiality.”
Under Canon 3E(1), judges would have to consider recusing themselves from such cases because the judges’ impartiality might reasonably be questioned, the committee said.
The committee concluded by repeating its advice from its earlier Opinion 98-31 that a judge should “regularly…re-examine the activities of each organization with which the judge is affiliated to determine if it is proper for the judge to continue the affiliation.”
The JEAC is charged with rendering advisory opinions to judges and judicial candidates on the application of the Code of Judicial Conduct to their circumstances. While judges and candidates can cite the opinion as evidence of good faith, the opinions are not binding on the Judicial Qualifications Commission.
