COURTS
By Judge Genesis E. Draper and Judge LaShawn A. Williams
The Intersection of Judicial Ethics and Racial Justice “Now, this country is a constant work in progress. We were born with instructions: to form a more perfect union. Explicit in those words is the idea that we are imperfect; that what gives each new generation purpose is to take up the unfinished work of the last and carry it further than anyone might have thought possible.” 1
W
ithin the last six months, the United States has undergone what feels like two seismic shifts that have shaken us to our national core—the first being the onset of the novel coronavirus, and the second being the death of George Floyd. Both events magnified racial inequities and thrust us into a much-needed conversation about race, equality, and justice. As these conversations are occurring throughout the country, a noticeably absent voice is that of the judiciary. The judiciary’s silence is not surprising, as historically judges have refrained from commenting on events that may dominate the news cycle. This silence is, in part, because judges are governed by ethical rules that are
meant to promote public confidence in the integrity and impartiality of the judiciary. Judicial canons that order judges not to be “swayed by partisan politics, public clamor or fear of criticism”2 and prohibit them from engaging in extrajudicial activities that cast doubt on the “judge’s capacity to act impartially as a judge”3 have left judges hesitant to comment on issues like racial justice. So this spring when the country erupted in protests and calls for action in the wake of George Floyd’s death, judges largely remained silent, declining to make any public comment about issues such as police brutality, over-policing of minority communities, and inequities in all levels of the justice system. Even as I type the words “police brutality,” I struggle with whether as a judge I should use the phrase in this article. As the conversations surrounding racial justice grow louder and louder, judges are beginning to use their voices to weigh in; however, they are still struggling to navigate the waters of how best to do that while maintaining the impartiality that the bench demands. Indeed, the success of our tripartite government was founded on the concept of checks and balances, including the independence and impartiality of the judiciary. A recent opinion by Judge Carlton Reeves (United States District Judge for the Southern District of Mississippi) demonstrates that finding the balance is not an impossible task. Judge Reeves opined that while the defendant in the case was legally entitled to qualified immunity, the harm suffered by the plaintiff was significant and the status quo relating to qualified immunity is “extraordinary and unsustainable.”4 He applied the binding precedent that required dismissal of the claims against an officer who had “transformed a short traffic stop into an almost two-hour, life-altering ordeal,” but Judge Reeves warned that we should “not be fooled by legal jargon [because] [i]mmunity is not exoneration. And the harm in this case to one man sheds light on the harm done to the nation by this manufactured doctrine.”5 In this scathing criticism
thehoustonlawyer.com
September/October 2020
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