The History of the Judicial Code of Ethics

By Hon. David Langham, Deputy Chief Judge, Florida Office of Judges of Compensation Claims, Pensacola

Blog administrator’s note: All judges of the Tennessee Court of Workers’ Compensation Claims are active members of the National Association of Workers’ Compensation Judiciary, and all have benefitted from attending the association’s educational programming at one time or another. This article was written by one of the pillars of this organization and appears in the November issue of the NAWCJ newsletter, Lex & Verum. Judge Langham graciously agreed to allow us to reprint it. Enjoy.

The Code of Judicial Conduct is an intriguing construct. The mere reference in singular terms belies reality. There is no such “the.” Around the country, there are a variety of such codes enacted by courts, legislatures, and regulators. The concept of such parameters is not novel, and we are all generally aware of them. But, in America the concept of published ethical standards for judges is a fairly recent development.

The idea started with attorneys. Just over 100 years ago, the American Bar Association decided that lawyers, this profession, and the public would benefit from ethical guidance. It seems that some population of attorneys perhaps struggled with the challenges of distinguishing right from wrong. The ABA, a voluntary association of attorneys, stepped up in 1908 and proposed a Code of Professional Ethics. To put that into perspective, America’s first 132 years there was no such constraint or guidance, over half of our national history.

Perhaps that effort would have been an end, but it later became a foundation for the idea of a similar set of standards for the judiciary. The story is one of perceptions, potential conflicts, venerable names, fame, fortune, deceit, public relations, “Field of Dreams,” Kevin Costner, Ray Liotta, and (you guessed it) baseball. Within just a few years of the Code of Professional Ethics, the ABA returned to the challenges of ethics, now focused upon the subject of judges through the efforts of none other than the only U.S. Supreme Court Justice to ever serve as U.S. President, William Howard Taft (1857-1930).

That, in itself, makes for an interesting story. A former President of the United States, serving as Chief Justice of the U.S. Supreme Court, is called upon to work with a committee of private lawyers to draft something that addresses the ethical and professional challenges of the bench. Though some see this as a natural extension of the Code of Professional Ethics in 1908, the judicial effort came about several years later, following the World Series in 1919.

The story already involves venerable and recognizable names (William Howard Taft, Kevin Costner, etc.), but no name as memorable as the malefactor in this tale, the villain. The son of a Union soldier in the Civil War, Kenesaw Mountain Landis was born in 1866 (the Civil War ended in April 1865). His father’s military service included the Battle of Kenesaw Mountain in Georgia. And thus, a young man was endowed with a unique and memorable name. Through a storied career, Kenesaw is the villain in our story. It may be peripherally of interest that the Landis family was thus clearly on the side of the Union in that conflict.

Kenesaw Mountain Landis

But, neither the president nor Kenesaw (who was appointed federal district judge in 1905 by Theodore Roosevelt) are necessarily the most famous players in the drama that leads eventually to the Code of Judicial Conduct. The most famous player instead was a baseball star by the name of Joseph Jefferson Jackson, who came to be known as “Shoeless Joe.” The nickname purportedly came from once playing a game in stocking feet. And, for the film buffs out there, Shoeless Joe was the ghost who convinced Ray Kinsella to plow under his corn and build a fateful venue in the midst of Iowa in “Field of Dreams,” starring Kevin Costner (Ray Kinsella) and Ray Liotta (Shoeless Joe).

See, baseball became a profession in the United States in the 1870s. It is likely that our villain, Kenesaw, grew up in Indiana exposed to the great American pastime of baseball. He achieved legally, ultimately being appointed to the federal bench. And, when Shoeless Joe and the 1919 Chicago White Sox were accused of taking bribes to throw the World Series, baseball had plans for Kenesaw. The league owners approached him to be the first Commissioner of Baseball, an offer that he accepted.

Of course being the first brings him notoriety. His inception of service in the midst of the (later labeled “Black”) Sox situation adds to his notoriety. But, for our story, his notoriety comes from his contemporaneous decision to accept that role and nonetheless remain on the federal bench. Yes, he accepted a new job being the face and governance of baseball and retained his position as federal judge. There were a fair few, apparently, that perceived that to be a conflict of interest or at least the potential for one. They thought he should elect one job or the other.

But, there was no rule that said how a judge should behave. In fact, of the three branches of government established and empowered by the U.S. Constitution, the judicial is the least specific and explanatory. The Legislative Branch is delineated in Article I, which expounds on that branch’s responsibility and authority in 10 Sections, in excess of 2,200 words. Article II creates and empowers the Presidency in 4 sections, over 1,000 words. The Courts are created generally in Article III, but no description of jurisdiction is stated. It is fair to say that our Founding Fathers spent less time on the Courts than elsewhere. The whole Article III is only about 375 words.

Essentially, Article III says only that (1) we will have a Supreme Court, and federal courts to the extent they are created by the legislative branch. The Constitution leaves even the details of how many and for what purpose to Congress; (2) that judges shall “hold their offices during good behavior,” which some see as “lifetime” appointments; and their compensation “shall not be diminished during their continuance in office.” So, although there is some perception in 1920 of an apparent conflict of interest, the legal profession was frustrated by the lack of standards and requirements.

Thus, from one of the great scandals of American sports, a federal judge spurs the contemplation of a set of ethical standards for judges. The ABA adopts the Canons of Judicial Ethics in 1924. They are criticized and challenged. Despite those critical perceptions, they are adopted nonetheless by various jurisdictions in various forms. And, they stand as the judicial behavior standards for almost fifty years, until 1972. In 1972, the ABA adopts instead the Code of Judicial Conduct, to answer the criticisms and to modernize the standards. Many of the original parameters are continued into the Code era, with the organization of Codes still including the organizational tool of Canons (chapters).

There are a variety of ideals set forth there. Included are appropriate behaviors (aspirations) and inappropriate (prohibitions). The definitions and delineations bring structure to the consideration of various judicial behavior and activity. They remain, now, an integral part of the American judicial process in the various jurisdictions.

This is all discussed in a YouTube video on the FLOJCC Channel, “The History of the United States Judicial Ethics,” This program is about 50 minutes long, and is approved by The Florida Bar for continuing legal education credit. Of course, anyone could seek credit in their own state for this program as well. We hope you will watch this interesting history.

As an aside, Kenesaw recently returned to the news. As mentioned above, his family was from the north, and his father served in the Union army. In addition to the impact Kenesaw effected on the legal community through his concurrent employment, he impacted baseball as well. He is credited with preventing the 1919 White Sox members, including Shoeless Joe, from entering the Baseball Hall of Fame, and more. He is credited with delegating (or at least supporting) the selection of baseball’s Most Valuable Player to the sports writers.

The MVP award includes the name of baseball’s first commissioner, Kenesaw Mountain Landis. According to USA Today, his involvement in baseball allegedly “includes ‘documented racism.’” In researching and producing the CLE program, it was interesting to learn that “no Blacks played in the majors during his quarter-century tenure” as Commissioner. It was not until more than two years after he passed that “Jackie Robinson broke the barrier in April 1947.”

There are those who contend that he was at least complicit in inherent racism, and others who believe he is responsible for the long period of segregation and discrimination. There are those who believe therefore that the time has come to discuss the continued presence of his name on these awards, as reported by the Tampa Bay Times. Some players have even suggested that their awards bestowed in prior years should be re-crafted without his name included.

Thus, for various reasons then, Kenesaw was controversial. The decision was made in October 2020 to remove Kenesaw’s name, according to CBS. It is unclear how history will treat the legacy of his service as baseball commissioner.

However, his decision regarding concurrent employment and the appearance of impropriety will remain an instigating influence in the ABA efforts to create judicial ethical standards. Regardless of the ultimate conclusions regarding his influence on baseball, his role as the malefactor instigating judicial standards will likely remain.

As we approach the centennial of that effort, essentially the centennial of the Code (through its predecessor, the Canons), it is a worthy effort to look back and appreciate the guidance, standards, and definition that has been provided to the bench through the ABA and William Howard Taft; and, to appreciate the influence that Shoeless Joe and Kenesaw Mountain Landis contributed to the recognition that the adoption of standards would be beneficial.

David Langham was appointed judge of Compensation Claims for Pensacola, Florida in 2001. He was appointed deputy chief judge for the Florida Office of Judges of Compensation Claims in 2006 and has served four governors in that role. Before taking the bench, he practiced workers’ compensation, employment discrimination, medical malpractice and tort defense in Jacksonville. He earned his bachelor’s from Ball State University and his juris doctor from Mississippi College of Law.

Judge Langham writes a blog entitled “Florida Workers’ Comp Adjudication.” His outstanding blog was the inspiration to create this blog, incidentally.

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