Canon misfire
The Oklahoma Bar Association is in the process of considering changes to the our state's Canons of Judicial Conduct. Although the subject is challenging for us laymen, the impartiality and independence of our judges is at the heart of the rule of law and the security of our life, liberty, and property.
The OBA committee conducting the review of the judicial conduct standards are being guided by the American Bar Association's model standards. Many Oklahoma attorneys are concerned that the new standards go too far in questioning a judge's outside involvements and associations.
Among many other problems, if adopted the revised canons would, without being reviewed or approved by our elected representatives, create a new protected class in Oklahoma -- sexual orientation -- which is not a protected class under Oklahoma law. Under the new canons, it's conceivable that a judge could be required to recuse himself from a case involving a homosexual litigant merely because the judge attends a church that takes a traditional Christian view of sexuality.
Saturday afternoon on 1170 KFAQ, during the 4 p.m. hour, constitutional attorney Leah Farish will be talking with host Bruce Delay about this issue, why it matters, and what we ordinary citizens need to do about it. Be sure to tune in.
Farish knows the ugly reality of judicial bias and has actually had a case reversed in her client's favor on grounds of the judge's bias. She believes that current remedies for bias are sufficient and that the new canons would cause scrupulous judges to withdraw from outside organizations and involvements, the kinds of interactions that keep a judge connected with the people they serve and grounded in the reality of the world shaped by their decisions.
UPDATE: Added a link to the proposed revision of the canons, provided in the comments by attorney Greg Bledsoe.
MORE: Here's the podcast from Bruce Delay's interview with Leah Farish.
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I think it would be going too far also. But judicial bias is not just difficult to eliminate but impossible. Bias is based on worldview or presuppositional belief system. Everyone has one whether recognized or not. Our Constitutional law doesn't cover everything. "Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." says John Adams. For example, anti-discrimination sexual-orientation law could be considered based on historical/religious or humanistic legal thought. I agree with John Adams and believe the historical/religious view is right. But, the humanist legal thought also makes "sense". When our highest court decided via the Lawrence v. Texas decision to make homosexuality "legal", why not enforce Constitutional due process by passing necessary anti-discrimination law?
Comment 4 to the Proposed New Rule 3.6 reads as follows:
"[4] A judge’s membership in a religious
organization as a lawful exercise of the
freedom of religion is not a violation of
this Rule."
Bias based on sexual orientation has been a part of the present Code of Judicial Conduct since 1997. The New Code, if adopted, will be by the Oklahoma Supreme Court under its independent powers to supervise the courts under the Oklahoma Constitution. Since it is an independent branch of government, the legislature and executive are limited at what they can do with respect to the courts.
Here is a link to the proposed new code with reference to the present code and the ABA model code: http://www.okbar.org/ethics/judicialconduct/CodeJudicial.htm