The Code of Conduct for United States Judges unambiguously states that “[a] judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.” Nevertheless, a sharply divided Judicial Council of the Sixth U.S. Circuit Court of Appeals voted 10-8 to permit a federal bankruptcy judge to remain a member of a country club that has no women or African Americans as full-fledged members:
The Judicial Council, made up of circuit and district judges in the four-state 6th District, voted 10-8 last month to dismiss the complaint. The memorandum written by Chief Judge Alice Batchelder spends little time discussing the merits of the contention that the Belle Meade County Club discriminates, instead focusing on Paine’s unsuccessful campaign to diversify the club.
“The record clearly supports (the) finding that the judge complained of engaged in long and sincere efforts to integrate the club in question. In the majority’s view, those efforts preclude a finding that he has engaged in misconduct,” she wrote.
An opinion by Circuit Judge Eric Clay, one of four separate written dissents, calls the club’s discrimination blatant, the court’s investigation amateurish and the majority’s interpretation of the code strained. Cole pointed to a section of the conduct code that calls for a judge to resign from a club if it fails to end its discriminatory practices within two years.
Setting aside the obvious blight on the judiciary’s reputation for fairness caused by a judge’s membership in a segregated club, there is no way to square the majority’s decision with the plain language of the law. The Code of Conduct’s official commentary provides that a judge must resign “in all events within two years of the judge’s first learning of” a club’s discriminatory practices, but the bankruptcy judge in this case remained a member through fifteen years of unsuccessful efforts to diversify the club.
Moreover, Chief Judge Batchelder is hardly suited to issue pronouncements on judicial ethics in light of her own questionable relationship with her ethical obligations as a judge. Batchelder serves on the board of a notorious oil-industry funded “junkets for judges” organization that provides expense-paid trips to western resorts where the judges are instructed on how to decide cases by industry representatives, and she has repeatedly refused to resign from this board despite an opinion from the federal judiciary’s ethics committee saying that federal judges have an ethical duty not to serve on it.
Batchelder also refused to recuse from a case where the Ohio Republican Party sought to prevent as many as 200,000 registered voters from having their votes counted, even though her husband — the current GOP Speaker of the Ohio House — had an obvious interest in the case as a GOP candidate for reelection.
Disclosure: The author of this post clerked for one of the dissenting judges in this case from 2007-08.