Kansas Law Review
The Framers argued judicial independence was necessary to the success of the American democratic experiment. Independence required judges possess and act with integrity. One aspect of judicial integrity was impartiality. Impartial judging was believed crucial to public confidence that the decisions issued by American courts followed the rule of law. Public confidence in judicial decision making promoted faith and belief in an independent judiciary. The greater the belief in the independent judiciary, the greater the chance of continued success of the republic.
During the nineteenth century, state constitutions, courts, and legislatures slowly expanded the instances in which a judge was deemed partial and thus ineligible to act. One such instance was actual bias: a judge was to avoid favoring one party or disfavoring another. Close behind the duty to avoid actual bias was the duty of judges to avoid creating a suspicion of unfairness or bias. Public suspicion that a judge was biased, even if untrue, lowered public confidence in judicial integrity and thus, judicial independence.
The American Bar Association adopted that understanding in its 1924 Canons of Judicial Ethics. Canon 4 challenged judges to avoid both “impropriety and the appearance of impropriety.” The difficulty of applying an appearance of impropriety standard was found in the very making of the Canons. One proposed canon was modified before ABA approval even though it was an excellent example of why judges should avoid an appearance of impropriety. The Canons were premised on the ideal that a judge was to act honorably; avoiding improper appearances maintained the judge’s honor. The Canons served as guidelines for judges, as standards subjectively interpreted by them and applied to their personal and professional lives. They were not intended to serve as rules to sanction or discipline judges for actual or perceived misconduct. For the next half century, the Canons largely served this limited purpose.
In 1972, the ABA adopted a Code of Judicial Conduct, supplanting the Canons. Most states adopted the Code as law. The duty to avoid creating an appearance of impropriety was part of the 1972 Code, and its importance rose. Both supervising courts and newly-created judicial conduct commissions often assessed charges of judicial misconduct through the lens of the appearance standard. The ABA’s 1990 Model Code altered its 1972 iteration by emphasizing the positivist aspect of the Code: any Canon or Section (rule) written in terms of “shall” was mandatory. The duty to avoid an appearance of impropriety was found in Canon 2 of the 1990 Model Code. Judges were regularly disciplined for violating Canon 2.
In the ABA’s 2007 reformation of the Model Code of Judicial Conduct, commenters debated the efficacy of “appearance of impropriety.” The ABA joint commission reforming the Code went back and forth before deciding to split the baby: Canon 1 declared as an aspirational goal the avoidance of an appearance of impropriety, but no judge was subject to discipline for failing to do so. This approach was strongly opposed, and the ABA hastily reversed course. It amended Rule 1.2 to declare that a judge “shall avoid . . . the appearance of impropriety.” Nearly all states have adopted some appearance of impropriety standard. For a half-century, failing to avoid the appearance of impropriety has been central to disqualifying and disciplining judges. This paper investigates the origins of the “appearance of impropriety” standard, its modest development, and its vigorous use since the rise of modern judicial ethics.
Michael Ariens, The Appearance of Appearances, 70 U. Kan. L. Rev. 633 (2022)