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"Ethics" As a Bludgeon? Comparing Federal and State Efforts

By Zack Klein, FTC intern

North Carolina: In the Tar Heel State, Justice Anita Earls, a prominent liberal voice on the North Carolina Supreme Court, finds herself embroiled in controversy.

Earls gave an interview in June noting the racial and gender disparities among lawyers presenting cases before the court, and simply for pointing out this fact, she now faces an investigation by the state’s Judicial Standards Commission. Rather than delving into the disparities she highlighted, the Commission is questioning whether Earls’ remarks breached the state’s Code of Judicial Conduct.

In a counteraction, Earls has filed a federal lawsuit alleging that such “intrusive investigations” infringe upon her First Amendment rights.

Her representation pulls no punches and asserts that the investigation is a politically orchestrated move.

Wisconsin: The state supreme court’s newest justice, Janet Protasiewicz, is also under the political microscope.

Protasiewicz’s Apr. 2023 election win altered the balance of the court, tilting it in favor of liberals for the first time in 15 years.

Her campaign remarks, criticizing Republican-drawn electoral maps and voicing support for abortion rights, led to several complaints being filed, accusing her of violating the judicial code of ethics.

The Wisconsin Judicial Commission, distinguishing between expressing personal views and making pledges on rulings, dismissed these complaints.

Nevertheless, Republican lawmakers, alleging bias, are considering impeaching Protasiewicz. Such a move could bar her from adjudicating contentious cases like redistricting, with far-reaching political ramifications.

Ethics Investigations – A Political Bludgeon?
In both North Carolina and Wisconsin, there’s an apparent pattern of selectively targeting justices, particularly those leaning liberal, through ethics investigations and complaints. This raises questions about the political motivations behind such scrutiny.

But what about on the federal level?

It’s simple: history belies the suggestion that Democrats have political motivations for their efforts to bring the Supreme Court in line with those of lower courts and the political branches.

Last year, the GOP threw its weight behind significant legislation aimed at enhancing transparency, the bipartisan Courthouse Ethics and Transparency Act, which is now law and requires the public posting of judges’ and justices’ disclosures and stock transaction reports.

More recently, GOP senators have co-written letters to the Court with Democrats asking them to adopt more stringent ethics and gift standards.

It was a GOP-led House Judiciary Committee that wrote (with Democratic assistance) and advanced (also with Democratic assistance) the 2018 Judiciary ROOM Act, which would have created a code of conduct for the Supreme Court and would have required the justices to post brief recusal explanations.

And leading Republicans have long called for the creation of the Office of Judiciary Inspector General, something Democrats are themselves finally supporting.

These efforts underscore Republicans’ recent acknowledgment of the need for ethics reform within the judiciary — that the judiciary’s credibility hinges on its adherence to ethical norms and that transparency and accountability are pivotal to maintaining public trust in the branch.

But what’s going on in North Carolina and Wisconsin is quite different, as ethics scrutiny has become an obvious tool for political ends.

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