Volume 36

Judicial Ethics and Identity

by Charles Gardner Geyh

This Article seeks to untangle a cluster of controversies and conundrums at the epicenter of the judiciary’s role in American government, where a judge’s identity as a person and role as a judge intersect. Part I synthesizes the traditional ethics schema, which proceeds from the premise that good judges decide cases on the basis of facts and law, unsullied by the extralegal influences of identity that make judges who they are as human beings. Part II discusses the empirical evidence, and the extent to which identity influences judicial decision- making in ways that contradict tenets of the traditional schema. Part III summarizes the state of judicial politics, wherein judges are called to task for departing from the traditional script and accepting the empirical evidence, which creates a three-way collision between the traditional model, the empirical evidence, and political reality. Finally, Part IV develops a framework for evaluating the relationship between judicial ethics and identity through which codes of judicial conduct can be deployed to mediate the perpetual and constructive tension between the salutary, tolerable, and unacceptable influences of identity on judicial conduct. Relying on a roadway metaphor, I argue that judicial ethics, properly understood, averts collisions between the traditional model, the empirical evidence, and political reality, by replacing an unrestricted intersection with a cloverleaf that channels the proper and improper influences of identity. Armed with this new framework, the Article illustrates the framework’s application with reference to recent controversies, to the end of showing how it helps to resolve easy problems, elucidate hard ones, and isolate unavoidable pressure points that remain.


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