Where's Jiminy Cricket when you need him? Without the little guy talking into your ear, as Pinocchio discovered, it's tough finding the right path to getting real.
In these sex- and power-obsessed, Be A Millionaire, Shop-Till-You-Drop, We're-Number-One, Winner-Takes-All times Stromboli is trolling and, as Pinocchio learned, Jiminy's absence is most deeply felt when thoughtful deliberation and a careful, objective analysis of the facts are needed to arrive at responsible decisions fairly attained.
Jiminy came to mind recently when reading in the latest (12/25/00) Newsweek of Supreme Court Justice Sandra Day O'Connor's expression of dismay at an election night gathering about the early announcement of Vice President Gore's defeat of Governor George Bush in Florida. "This is terrible," she is quoted as saying, further explaining that this victory coupled with wins in two other closely contested states meant that the election was "over." Then, departing the area "with an air of obvious disgust," she left it to her husband to explain that she was upset because they had hoped to retire soon to Arizona, but a Gore win meant they'd have to wait another four years because she did not want a Democrat to name her successor.
This is not the first published report of Justice O'Connor's firm intention to delay her anticipated departure from the High Court until she can be replaced by a Republican, and it raises troubling questions about the ethical issues involved in her determination to take part in the Supreme Court's recent decision in Bush v. Gore.
For California judges, Jiminy Cricket takes the form of a Code of Judicial Ethics, which has been formulated to define the rules of behavior governing a judge's comportment on and off the bench. Violations of this code aren't as easily brushed off as a cricket on the shoulder, but rather may result in the offending judge's being disciplined by Jiminy's enforcer, the state's Commission on Judicial Performance, with options ranging from a "stinger" letter up to and including removal from the bench.
Intent on upholding the "integrity and independence of the judiciary," Canon 1 of California's Code notes that "An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved."
Jiminy couldn't have said it better.
Canon 2 holds that "A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities." In the interest of promoting public confidence, it says that a judge should not only obey the law, but "shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."
The Advisory to Canon 2 notes that "The test for the appearance of impropriety is whether a person aware of the facts might reasonably entertain a doubt that the judge would be able to act with integrity, impartiality, and competence."
Canon 3E provides that "A judge shall disqualify himself or herself in any proceeding in which disqualification is required by law" and "a judge shall disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no factual basis for disqualification." The Advisory to this section offers that "a judge is disqualified whenever the judge's impartiality might reasonably be questioned", by Jiminy.
But, that's California. And, of course, the other 49 states have similar bodies. But on the federal bench, though there is a Code of Conduct for its lifetime-appointed tenants, Jiminy seems to have furled his umbrella, and that's cause for alarm. Because while no one can reasonably expect a judge, or even a Supreme Court Justice, to be entirely devoid of political views or allegiances, when asked to adjudicate a matter with consequences no less weighty than the determination of who will be the next President of the United states, Jiminy'd blow his top hat if a Justice with a powerful personal interest in the fortunes of one of the two candidates failed to find within herself the ethical constraint necessary to step aside and allow the decision to be made by others.
Of course, that might have had an effect on the result, mightn't it?
Come back, Jiminy! Stromboli rules!
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