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US Supreme Court justices are procedurally nominated by one politician (US president) and then interviewed, vetted and ultimately approved or rejected by about one hundred other politicians (US Senate and potentially US Vice President). This is a political process and it is impossible today to read informed discussions of the supreme court justices (former, current, and pending) without labels like "conservative" and "liberal" appearing regularly.

For exemplary purposes For example only: CNN's How Trump picked Amy Coney Barrett over Barbara Lagoa for the Supreme Court includes descriptions of conversations suggesting that the selection criteria for a nomination choice was based at least in part on how the choice of a specific candidate would help the US president be re-elected.

Question: If sufficient evidence were to be produced publicly that the nomination of a specific candidate was made primarily for political gain of the nominator and that information addressed in a question during a confirmation process, perhaps as bluntly as "You've been nominated because of optics in a battleground state for the president's reelection, is it ethical for you to continue to accept this nomination?" can the candidate say something to the effect of "I don't care" or "It doesn't matter" and simultaneously demonstrate the level of professional ethics expected not only of any federal judge but of a supreme court justice, though it might seem contrary to how the drafters and interpreters of the US constitution have stated how this political process should work?

I'm asking about the general case where opportunism can be demonstrated, not necessarily this specific case.


From the linked CNN piece, as an example only:

Instead, his imagination seemed temporarily stoked by Barbara Lagoa, the Florida-born judge who sits on the 11th US Circuit Court of Appeals. In a phone call to Senate Majority Leader Mitch McConnell in the hours after Ginsburg's death was announced, Lagoa was one of a few names Trump floated as his potential pick, according to people familiar with the call. Jetting back to Washington from a rally in Minnesota on the night Ginsburg died, Trump quizzed aides whether Lagoa had to potential to secure him Florida's 29 electoral votes, people familiar with the conversations said.

Egged on by members of his political team and allies in the state, Trump appeared captivated in conversations last weekend by the prospect of nominating a woman whose biography -- daughter of Cuban exiles with roots in a community that could prove critical to his re-election -- so obviously aligned with his political prerogatives.

[...]This account is based on interviews with nearly a dozen sources, including White House officials, conservative allies and people close to the process, many who spoke on the condition of anonymity to speak frankly about Trump's selection process.

  • I've included this example 1) as background because it's what raised this question in my mind and 2) as an effort to help clarify a question that might otherwise seem too abstract. – uhoh Sep 27 at 3:43
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    Who would enforce such a position either way? All aspects of the US checks and balances system are subsumed under partisan advantage. – Jontia Sep 27 at 6:54
  • @Jontia one example might be the nominee withdrawing candidacy upon reflection, another might be a vote against approval when all information is considered, there may be others. Why do you ask? – uhoh Sep 27 at 8:19
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    FYI, "exemplary" means "admirable model," synonymous with "epitome." I don't think that's what you mean to say here. – Paul Draper Sep 28 at 5:22
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No, it is not an issue.

Assuming the nominee has not personally engaged in unethical acts (such as offering a quid pro quo for appointment) then they haven't done anything wrong and therefore have no ethical case to answer. The nomination process itself is laid down in the constitution and is political by design; the assumption was that there would be at least some degree of integrity in the process.

The fact that the justices on the Supreme Court serve for life was also a deliberate part of the design; once the judge is appointed the executive has no leverage to extract favours in return, and so the appointee is free to judge according to evidence and conscience.

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  • But my question asks about optics, not a quid pro quo, per se. If the candidate selects the nominee in order to win the election, the only thing the candidate provide is to continue with the process as themselves, which is the benefit to the candidate. In this case the length of tenure is irrelevant because there is no "But I'd like you to do us a favor though." – uhoh Sep 27 at 8:26
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    @uhoh Legally the president can nominate whoever he wants. He could nominate Kanye West if he wanted. – Ryan_L Sep 27 at 17:10
  • @Ryan_L unhelpful non sequitur; the question is about decisions made by the nominee, not the nominator. This is a good example of what happens when an answer low-balls and addresses an easier question than what was actually asked. – uhoh Sep 27 at 17:25
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    @uhoh Your question didn't mention "optics", it just asked if the candidate could ethically ignore the background to their nomination. Members of the public are going to think lots of different things, mostly based on their own preconceived ideas. – Paul Johnson Sep 27 at 20:10
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    @uhoh I believe the issue is that you've asked an ethics question, where most people were (rightly) expecting a politics question. – Paul Draper Sep 28 at 5:24
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The American Bar Association has published a Model Code of Judicial Conduct. The canons of this code seems relevant, and reads as follows:

CANON 1 A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

CANON 2 A judge shall perform the duties of judicial office impartially, competently, and diligently.

CANON 3 A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.

CANON 4 A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.

Canon 4 clearly relates to a prohibition of certain political activities, but the prohibited conduct does not require judiciary candidates to make judgements regarding political motivation of those the US Constitution puts squarely in the hands of politicians.

Details: the canons of the code of conduct for federal judges are more detailed than the ABA "model" code, but it emphasizes the same core concepts. Under Canon 5 of the US code, a more detailed set of prohibited political conduct is included. This for example prohibits political campaign contributions, but this does not seem to alter the fact core issue that the code applies to the judiciary (and some of their family), and does not apply to the motivations of politicians who nominate them. In fact, that same federal code of conduct prohibits judges from making public speech supporting or opposing any political candidate, so a federal judicial candidate might decline to answer similar questions posed to maintain independence from the political process.

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  • Kudos for a sourced answer, addressing the question directly, providing options for further reading and food for though. Thank you very much! – uhoh Sep 27 at 23:14
  • Bar association ethics are non-binding as the candidate doesn’t have to be a lawyer – jmoreno Oct 6 at 12:29
  • I started with the Bar Association model code because it's easier to understand/explain. – Burt_Harris Oct 7 at 1:58
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Obviously, that is a political decision that would be made either by the Senate at the time of confirmation, or the Senate and House at the time of impeachment. I doubt there is any objective criterion that one could consult in this case. Perhaps the ABA has issued some guidelines for lower courts, but I have not seen any.

That said, the nominee could easily argue against such an assertion. Don't forget, they are lawyers. The nominee would be asked whether they feel that the fact that they had been selected for openly political reasons disqualified them. They might then argue that the person who nominated them was mistaken, and that said nomination will not help their political prospects; that if the nominator thought that they would feel obligated to issue favorable rulings, that would be an error due to their record of non-partisan rulings and the judicial liberty granted by their life term; that regardless of why they were nominated, they are one of the best people for the job and politics should not hold up their nomination. Things like that.

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  • "Don't forget, they are lawyers." I literally did forget that, thanks! – uhoh Sep 27 at 23:13

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