Post Date: February 24, 2005

Justice Breyer deserves much credit for taking seriously the question whether he should have recused himself in the sentencing guidelines cases, but the revelation that he sought advice from an academic expert raises another issue of judicial ethics that should not be lost. Is it proper for judges to seek private, expert advice about recusal? Federal judges (except Supreme Court Justices) are subject to the Code of Conduct for United States Judges. Presumably, Supreme Court Justices would acknowledge that in addition to matters covered by statutes, they are governed by some common law of judicial ethics. On the issue of ex parte communications, the Code of Conduct is instructive for Supreme Court Justices. It provides in Canon 3A(4) as follows:

A judge should . . . except as authorized by law, neither initiate nor consider ex parte communications on the merits, or procedures affecting the merits, of a pending or impending proceeding. A judge may, however, obtain the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond.

The Commentary to the Canon is explicit in its application to communications with “law teachers” and adds that an “appropriate and often desirable procedure for a court to obtain the advice of a disinterested expert on legal issues is to invite the expert to submit a brief amicus-curiae.” The current ABA Model Code of Judicial Conduct, on which most states have based their judicial ethics rules, is even more explicit in its language, which prohibits ex parte communications “concerning a pending or impending proceeding.”

Academics could argue for a long time whether advice on recusal fits within the literal language of a communication about “procedures affecting the merits,” but there seems little doubt that the parties are vitally interested in the private advice that a judge receives about whether to recuse. As the sentencing cases indicate, Justice Breyer’s decision to sit was critical to the outcome. The parties had no way of responding to private advice about which they did not know. With academics doing so much outside consulting these days, an academic consulted ex parte may not be so “disinterested” as the judge thinks. In addition, advice given informally and privately may be more off-the-cuff and less “expert” than the inquiring judge realizes, and the pleasure and pride in being asked may lead to nondisclosure both of some “interests” or of lack of expertise. There is also the danger that judges may select experts more likely to give the advice they desire and that experts may consciously or unconsciously lean toward giving the advice they believe that judges want to receive.

While judges may receive private advice on questions of judicial ethics that do not involve a proceeding, Supreme Court Justices seeking advice on recusal questions outside the bounds of their own Court should do what other federal judges may do: go to the advisory Committee on Codes of Conduct that the Judicial Conference of the United States has created to give advice to federal judges on questions of judicial ethics. Of course, where a proceeding is concerned, the parties are not able to respond to such advice or even know of it, but judicial ethics rules generally permit judges to consult with other judges, and such advice is free of many, although not necessarily all, the concerns that are connected with the prohibition against outside private advice.

It is possible that the federal advisory Committee would not advise a Supreme Court Justice about recusal. The considerations applicable to Supreme Court Justices are not the same as those applicable to federal judges generally. On the one hand, recusal is more drastic when the Supreme Court is involved for there is no replacement for a recused Justice. On the other hand, impartiality and the appearance of impartiality are even more important where Supreme Court Justices are involved. Perhaps that is why it is important for Supreme Court Justices when possible not to say or do things that may raise the issue of recusal. In any event, if the advisory Committee refused to advise, a Justice wanting outside advice could seek it from an expert either in the form of an amicus brief or by following the disclosure and opportunity to respond procedure of Canon 3A(4). That is certainly preferable to much later disclosure of advice privately given (especially when the disclosure is made, as it was in the sentencing guidelines instance, by the expert) and is more likely to result in a carefully considered, as opposed to an off-the-cuff, opinion from the expert to the judge.

Andrew Kaufman is the Charles Stebbins Fairchild Professor of Law at Harvard Law School.