FOR THE PAST year, Judge Abner Mikva of the U.S. Court of Appeals for the D.C. Circuit has served as chairman of the individual rights and responsibilities section of the American Bar Association. This committee is concerned with civil liberties and rights and, to some extent, international human rights. As chairman, Judge Mikva led a campaign to increase membership in the ABA and in his section, particularly among young, female and minority lawyers. His undertaking these responsibilities while remaining on the bench has caused the Washington Legal Foundation to file a complaint with Judge Mikva's peers on the court, charging him with "conduct prejudicial to the effective and expeditious administration of the business of the courts." Action on that complaint was concluded recently by Chief Judge Spottswood Robinson, who accepted Judge Mikva's decision to remain in the ABA post but to cease his membership activities.
Was it unethical for Judge Mikva to hold this position with the ABA? No. It has been reported elsewhere -- gleefully -- that the judge was "found guilty of judicial misconduct for left-wing lobbying for a bar association group," but that is simply not correct. The Code of Judicial Conduct, which sets out ethical standards for federal judges, specifically authorizes a judge to "serve as a member, officer or director of an organization . . . devoted to the improvement of the law, the legal system or the administration of justice." According to the ABA, at least half a dozen federal judges have served in the chair of various sections, including FBI Director William Webster, who led the corporate, banking and business law section while he served on the U.S. Court of Appeals for the Eighth Circuit. A committee of federal judges, which Judge Mikva consulted about the WLF complaint, did advise him to terminate his involvement in recruitment, since such activity could be interpreted as fund-raising, and he has done that. But the judge will continue to serve as chairman of the section until his term expires in three weeks.
Should judges be encouraged to serve in positions of leadership in the bar association or in other private organizations? The code provision is based on a belief that judges ought to remain active in community affairs, that they bring needed expertise to professional organizations and that they should resist the isolation that their position often provides. But even when judges observe the code's prohibition against participating in matters that may come before them in court -- and Judge Mikva did not vote on any such matter coming before his section -- the potential for the appearance of conflict of interest is always there. On balance, we believe judges ought to err on the safe side by avoiding extrajudicial responsibilities that could possibly pose a conflict.