The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In Matter of Clark, the Kansas Commission on Judicial Performance had publicly censured a Magistrate Judge who had posted nude pictures of himself on a "dating website for couples"—something the Commission concluded violated Canons that mandated that "Judges should maintain the dignity of judicial office at all times, and avoid both impropriety and the appearance of impropriety in their professional and personal lives" and that they not "demean the judicial office."
The Magistrate Judge had since retired, and didn't challenge the discipline, so the court concluded that it should "accept the [retired judge's] stipulations and take no additional action." But Justice Caleb Stegall wrote an interesting concurrence (joined by Justice KJ Wall), which struck me as worth quoting at length:
[I]n my judgment, while Judge Marty K. Clark's behavior was embarrassing, foolish, and grossly immoral, it was not a violation of any of our rules governing judicial conduct. Because—let us be clear—the behavior we are talking about consists entirely of the lawful, private, consensual sexual practices of Judge Clark. Behavior that was only discovered by the Examiner and the Commission because it was disclosed by a disgruntled participant in that behavior.
To be sure, there was a time in our society when private, consensual sexual practices were not deemed off-limits to government regulation. For good or ill (or good and ill), that time has passed. Through a slew of judicial decisions, society has by now clearly decided that sexual conduct between consenting adults is none of the government's business. Indeed, the scope of private behavior protected from government regulation must be broader than simply sexual conduct….
Rapid advancements and use of technology, however, have outpaced legal protections for privacy. Surveillance of all kinds (including the kind of self-surveillance practiced by Judge Clark) abetted by ubiquitous high-powered video and audio recording devices—along with the ease of publication and distribution offered by digital social media—has allowed for substantial increase in governmental and employer intrusion into the private lives of individuals.
We have become a society not so much subject to one all-powerful watcher but to the whims of a thousand-and-one watchers. Indeed, "it isn't some stern and monolithic Big Brother that we have to reckon with as we go about our daily lives, it's a vast cohort of prankish Little Brothers equipped with devices that Orwell, writing 60 years ago, never dreamed of and who are loyal to no organized authority." By turning "our lenses on ourselves in the quest for attention by any means" the "invasion of privacy … has been democratized." A truth Judge Clark now knows in full.
The norming of 24/7 surveillance can lead to acceptance of the fact as not just a nuisance but as a positive good. And as many have observed, we are now well into the end game of surveillance which may be described as a kind of collusion between big and little brothers. Governments have been unable to resist utilizing the vast store of data being collected by little brother to monitor the citizenry. "'[L]ots of surveillance data moves back and forth between government and corporations. One consequence of this is that it's hard to get effective laws passed to curb corporate surveillance—governments don't really want to limit their own access to data by crippling the corporate hand that feeds them.'"
I am reminded of the truth that the "greatest dangers to liberty" are often found "in insidious encroachment by men of zeal, well-meaning but without understanding." And so reminded, wisdom councils that big brother himself is not obliged to act on every scrap of tittle-tattle that comes his way from ill-meaning little brothers. This is the curious situation we now find ourselves in.
If the information about Judge Clark generated by this self-surveilling system genuinely showed sexual conduct that interfered with the ethical performance of his judicial duties, the Examiner, the Commission, and this court would have a duty to act on it.
But Judge Clark's actions did not have any real, factual connection to his role as a judge. So what is really going on? In short, Judge Clark has embarrassed us—the Examiner, the Commission, this court, the judiciary, and the wider legal community. And this may be the unforgivable sin of our day. The complex and ubiquitous shaming and shunning rituals our society has concocted and enacted in recent decades may best be understood as an elaborate response to collective embarrassment. Scapegoating and "cancelling" the most embarrassing among us becomes a quasi-religious way of purging collective shame and guilt.
The Examiner and panel in this case have acted as grand inquisitors on behalf of an allegedly scandalized public. The Examiner's filings below passionately decry Judge Clark's behavior—quoting In re Singletary (Pa. Ct. Jud. Disc. 2012), for the claim that the public does not want its "judges to be conducting photo sessions featuring the judicial penis and then to be sending the photos over the electronic airwaves to another person—thereby placing that person in a position to further publish the photos to anyone he or she may deem deserving." At oral argument, the Examiner likewise denounced Judge Clark's behavior. Judge Clark was described as "grooming his private organs for purposes of taking a photograph … not for him to look at himself" but to "give to other people." Which "in my opinion," the Examiner continued, "does nothing to enhance the integrity of the judiciary." …
So who has really been scandalized? As with the excessive rhetoric, the legal justifications given by the Examiner and panel in this case are thin cover for the naked embarrassment—and the accompanying need to close ranks and restore a facade of judicial superiority—felt by all.
For example, the panel insists that the aim of the Code and of discipline under the Code is to ensure that judges remain "the role models of our society" who "exhibit behavior" in their "personal lives" that ought to be "emulated by others." This "unique role of judges" requires every judge to understand that "the black robe places a higher standard upon them" to uphold the "moral compass of our society" or face discipline for failing to do so. What is this undefined higher standard? Is the panel suggesting that judges have an obligation to have only traditional sexual relationships? Do we really desire a morally stratified society in which judges occupy the supposed highest and best strata while mortals live according to a "lower" standard? Is this what the Code demands?
The panel's understanding of the "role of judges in our society" partakes of a certain kind of judicial rhetoric afoot today—the rhetoric of judicial supremacy. There is a real effort by some to situate the figure of the judge as an idealized kind of ruler; set apart and consecrated to a holy and inscrutable order of something called "law"; worthy to be obeyed, in significant part, because of his or her moral and intellectual superiority. But in a society dedicated to the rule of law, judges are not a priestly class of elite rulers. Judges are not even supposed to be the role models of society. To think this is to take the myth of judicial supremacy to its most absurd conclusion.
Today's case illustrates that one consequence of elevating judges to the "supreme" arbiters of society is that we will endure bizarre replays of age-old religious controversies concerning the qualifications of priests to administer religious rites. Or consider another, more mundane example—the panel's finding that Judge Clark's picture project was "public" simply because those pictures could one day be made public. This definition of "public" cannot withstand the application of either common sense or the law. In fact, what happened here looks a lot like what our Legislature has recently outlawed as "revenge porn" or "nonconsensual pornography." It appears to me that the Examiner and the Commission have unwittingly made themselves accomplices in one man's effort to exact revenge against Judge Clark by "disseminating" his nude photographs and images of his sexual activities in which he had an expectation of privacy.
Would the Examiner and panel ever have used such disparaging and salacious terms along with such intimate and detailed descriptions to characterize the lives and practices of other, more socially accepted, sexual minorities? Would the Examiner file a case on such questionable legal grounds, for example, based solely on intimate photographs of a Kansas judge handed over by a spurned homosexual lover? What about photographs of consensual but unconventional sexual practices engaged in by a heterosexual married couple given to the Examiner by one of the spouses after a nasty divorce? Or is this simply the age-old game of the powerful scapegoating people who have no real constituency or friends in high places?
I may be an unexpected defender of "consensually non-monogamous" judges—and I have no difficulty condemning adultery as morally destructive—but above all else, the rule of law condemns the arbitrary and unaccountable power of the state to pick winners and losers, reward friends and punish enemies, and protect its own interests above the public's. Such abuses and the hypocrisy they reveal are the real threat to the legitimacy and integrity of the judiciary. The rule of law is not so weak it will collapse in the face of a few bedroom peccadillos or the occasional clownish, embarrassing episodes of official misadventure. But it is not so strong it can long endure the misrule of arbitrary double standards—which amount to a special kind of breach of the social contract.
An objection may be quickly raised that the moral content and quality of the personal character and integrity of our public officials matter. And more, that if a person becomes a public official like a judge, that person has agreed to make his or her private life a matter of public interest. There is real truth to this. But it is a grave mistake to think that either the Commission, the Examiner, or this court represent the mores of the public—mores which, as every honest political observer would admit, prove to be inscrutable at times. Indeed, even if such mores were knowable, by what right would we claim the authority to enforce the moral qualms of the public of its behalf?
None of this means that within our system of government public officials are immune from either criticism or sanction for their private behavior and personal character. They are not. Judges are not. There are two clear and available political means for the public to express its own moral qualms about a public official's private behavior and character—sexual or otherwise. At the ballot box and in an impeachment proceeding.
Judge Clark could easily and correctly have been unseated by his constituents had they determined that his character was not of the kind they desired for their judges…. And there is yet a third tribunal of judgment on the conduct of judges—the legislative tribunal of a court of impeachment….
Nothing in my opinion today should be read to conclude that I think Judge Clark should have remained a judge. My judgment is more limited—if a public official is to be removed from office or otherwise sanctioned for lawful private conduct unrelated to the performance of his or her public duties, that sanction must be procured through political means. It is not our role to decide for the public what counts as sufficiently acceptable character for the job.
We are all sinners. Acknowledging this truth is one of the pillars supporting the rule of law itself. Judges are not "angels"—to put it in Madisonian terms. See The Federalist No. 51 (Alexander Hamilton or James Madison) ("If men were angels, no government would be necessary."). And the purpose of the Code of Judicial Conduct is not to protect or project an illusion of judges as angelic demigods or Mosaic lawgivers. It is quite the opposite—to guard against the very real danger of judges as ordinary human beings tempted to abuse their power in vain and self-interested ways. The Code protects very practically against official and public misdeeds—it is not concerned with preserving judicial authority grounded in moral superiority. To the contrary, the legitimate exercise of judicial authority flows from the people acting under a constitutional process, not from any innate moral qualities possessed by the judge.
In this country, none are born or entitled to rule due to any real or imagined superiority. To suppose otherwise is to sow the seeds of passivity and apathy on the one hand (a people not given to the virtue of self-government because it is not expected of them)—and cynicism and disillusionment (when the lie is inevitably exposed), on the other. For indeed, no judge held to that standard could withstand public scrutiny, ridicule, embarrassment, and condemnation if the fullness of our private lives were broadcast to all. One's imagination need not run immediately to the salacious or sexual. One merely has to imagine a judge as an exasperated parent. Or a judge who handles an argument with a spouse poorly. Or a judge who tells an off-color joke.
I am reminded, at last, of scorned and humiliated Hester Prynne—pondering the "hidden sin" in every human heart, musing over the fact that "if truth were everywhere to be shown, a scarlet letter would blaze forth on many a bosom." The lesson Hawthorne's classic teaches is not, as is sometimes supposed, an ethic of sexual liberation. Rather, it is that human society tends toward moral stratification as it ever and always resists the natural democratization and equality that comes from an acknowledgment of universal failure.
"There is none righteous, no, not one." Romans 3:10 (King James Version). Absent this kind of fundamental equality before the law, systems of accusation and punishment are too often motivated by "the narcissistic satisfaction" the powerful will take in "being able to think [themselves] better than others"—rather than from legitimate and just efforts to protect and provide for the common good of society. Freud, Civilization and Its Discontents. Under the rule of law, when and how failures legitimately subject a person to public sanction is perhaps the most important question of public justice.
In the narrow category of the lawful private acts of public officials unrelated to their public duties, the remedy must be political. Otherwise, the very will of the public may be thwarted by a government purporting to act on the public's behalf—but in truth, acting only to elevate and insulate itself….