Must Judges Avoid "Appearance" Problems?

The American Bar Association commission tasked with revising the Model Code on Judicial Conduct is proposing to weaken the ethical requirements for sitting judges. Specifically, according to this New York Times report the rule that judges avoid "impropriety and the appearance of impropriety" would become a nonbinding aspiration and would no longer provide sufficient basis for disciplining judges.

Supporters of the change say disciplining judges for violating a concept as vague as “the appearance of impropriety” is unfair. Opponents denounce any retreat from the longstanding and widely embraced standard, . . .

Mark I. Harrison, the chairman of the A.B.A. commission, said the “appearance of impropriety” standard was vague and added nothing to the rules prohibiting specific conduct that remain mandatory.

“We think it’s a step forward,” Mr. Harrison said of the commission’s decision. “It is important as a matter of due process and fairness to make clear what would be the basis for disciplinary enforcement without ambiguity and without confusion.”

The article cites many critics of the proposed change, including some judges, who dispute the claim that the existing standard is unworkable or too vague. There is no doubt that a prohibition on appearance problems can, at times, be difficult to apply, it serves as a helpful prophylactic rule. Moreover, as with any rule that is sufficiently general or abstract, the application to specific instances is facilitated by the accumulation of precedent and the interpretations of various judicial organizations.

Here's more from the story:

Jonathan Lippman, New York’s chief administrative judge, disagreed, saying the “appearance of impropriety” standard was sensible and workable. “I don’t think this is nuclear science,” he said. “Judges overwhelmingly approve of that standard as a basis on which to go about their daily business.” . . . .

Victoria Henley, the president of the Association of Judicial Disciplinary Counsel, whose members hear and consider complaints against judges, said the recent revisions were unlikely to gain wide acceptance. “If they basically gut the ‘appearance of impropriety’ standard,” Ms. Henley said, “it’s unlikely that the A.B.A. will continue to be responsible for drafting a model code that will be used by any state.”