by TChris

The NY Times argues that proposed changes in the Model Code of Judicial Conduct would make it easier for judges to follow the lead of Justice Scalia by declining to remove themselves from cases in which they would appear to have a bias, so long as they pronounce themselves to be fair.

The bar panel's newly unveiled proposals for revamping the Model Code of Judicial Conduct would actually weaken the core provision that requires judges to avoid not just actual impropriety in all their activities, but also the appearance of impropriety. Although the new version retains the appearance standard, it waters it down by saying that violations will not "ordinarily" lead to professional discipline unless there are charges of other rule violations. Intentionally or not, as Senator Patrick Leahy of Vermont aptly noted last week in a letter to the bar association's president, Dennis Archer, that transforms a crucial ethical mandate into "an ancillary add-on" and significantly diminishes its moral force and deterrence value.

The proposed revisions give judges some other breaks. They would weaken the requirement that judges refrain from deciding cases in which they have an economic interest, often through ownership of stock in one of the corporate parties to a suit.

Even more baffling, the commission has deleted the current instruction to judges to resolve any ambiguity in the Code of Conduct in a way that advances public trust in the judiciary's "integrity, independence and impartiality." Practically and symbolically, that deletion is a real mistake.