Like Constitutions, Interpreting Ethics Codes Requires Understanding, Humility, and Transparency
Here's a short opinion piece by Walter Dellinger, head of the Office of
Legal Counsel under Pres. Clinton. It's part of a <a href="http://www.washingtonpost.com/wp-dyn/content/article/2009/05/01/AR20090…; target="”_blank”">series
of such pieces</a> that will appear in tomorrow's Washington <span>Post. </span>The opinions concern what
Pres. Obama should be looking for in his first Supreme Court nominee. After Dellinger's opinion piece, I tie his ideas into government ethics. I think they're very important observations.<br>
<br>
<p>During the campaign, candidate Obama said
that he would seek justices
with a capacity for "empathy." Some critics said that empathy was an
illegitimate, lawless criterion. This afternoon, the president doubled
down: "I will seek someone who understands justice isn't about some
abstract legal theory or footnote in a case book. It is also about how
our laws affect the daily realities of people's lives."
</p>
<p>The president is right to reject the idea
that judging is a
mechanical exercise. It requires the exercise of judgment, which makes
room for a candid consideration of how legal rules do affect the daily
realities of people's lives.
</p>
<p>Far too few judges, liberal and
conservative, candidly acknowledge
that the questions before them are difficult, the answer often not
clear, the history not fully accessible and the text far from
unambiguous. Majority and dissenting opinions are too often written
with untenable certitude about the "clearly right answer." As my Duke
Law School colleague Jefferson Powell wrote in his book "Constitutional
Conscience," a truly ethical judge will be honest about the inescapable
fact "that constitutional decision making is a creative endeavor" and
will "make the arguments to herself and others with candor, including
an overt recognition of the ambiguities and uncertainties [involved]."
The good judge will employ her legal craft "not to conceal difficulties
or hidden springs of decision but to render them transparent and thus
to enable the reader to evaluate critically the conclusions reached by
the writer." With that honesty about the inevitability of choice should
come humility about one's role as a judge.<br>
</p>
<p>I find that far too often, government lawyers involved in ethics
cases
treat their role as a mechanical exercise, in which they are required only to
state one side of the matter, and limit themselves to the law.<br>
<br>
As
with constitutional matters, ethical matters involve issues and
considerations that go far beyond the law. I think the same things that
Dellinger sees too lacking in judges, I see too lacking in government
lawyers dealing with ethics: the candid consideration of how
ethics laws and ethics violations affect citizens and their government,
and the candid consideration of the ambiguities, uncertainties, and
limitations in ethics laws.<br>
</p>
<p>Law cannot possibly deal with every aspect of government ethics, no
more than a constitution can deal with every aspect of our democracy or
civil rights. In fact, ethics codes deal with a small minority of
real-world ethics situations. The people involved in an ethics program,
including officials, lawyers, and ethics commission members, must
supply the judgment, sensitivity, and humility necessary to deal with
all the gray areas and all the areas that aren't covered at all.<br>
</p>
<p>Ethics is not an area where strict construction, partisanship, or
certitude belong. Sensitivity to appearances, to democratic principles,
and to fairness are what is most important.<br>
<br>
And transparency cannot be
overstressed. This is not a
natural skill for lawyers, but in the ethics field, I think it is an
important goal to strive for.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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