The rule of law underlies a constitutional democracy, and one of the critical components of the rule of law in a constitutional democracy is neutrality. In a telepress conference to Slovenian judges, U.S. Supreme Court Justice Anthony Kennedy talks about how the judicial branch of government must guarantee the neutrality of the rule of law, while maintaining a delicate balance between judicial ethics and independence.

Judicial ethics are closely linked to judicial independence and it's hard to talk about one without talking about the other.

The law is a promise. The promise is neutrality. If the promise is broken, if there is no neutrality in the enforcement, in the administration, in the interpretation of the law, then the law as we know it ceases to exist....

Judicial independence is closely related to neutrality. It is the duty of the judiciary to insist that the other branches of government give to the judiciary the resources and the support and the defense that the judiciary needs to do its job. But it is difficult to convince the other branches of government, in part, because some legislators think judges have an easy job. Legislators are reluctant to raise judges' salaries or to appoint more judges. It is also difficult because resources are scarce, and legislators have to be concerned with building hospitals and schools and roads.... But a functioning legal system is as important to a growing economy and to a progressive society as are hospitals and schools and roads. And so, it is the duty of the judge to explain that the courts and the law are an important part of the capital infrastructure of any society.

The Concept of Judicial Ethics

Closely related to judicial independence is the whole concept of judicial ethics. If one of you were asked to speak to his or her colleagues on the subject of judicial ethics, at first you might be reluctant or diffident.... But it is very important to talk about judicial ethics. It doesn't mean that the speaker is perfect. It means that we are concerned enough to ensure that the judiciary has the reputation and the reality of integrity and neutrality in all that it does. Judicial ethics -- as well as judicial independence -- concerns appearances and reality. If the appearance, if the perception of unfairness exists, a cloud is cast over the judiciary.

One way to think about an ethical code for judges is to say that it has three parts. The first part is that each judge must have as his or her personal code the highest possible standards for personal and professional conduct. Your personal life, the way in which you relate to your family and your society inescapably becomes known to the public, and you must comport yourself with the demeanor, with the fairness, with the integrity, with the rectitude that we expect of our most responsible citizens.

From a professional standpoint, the judge must maintain a demeanor that befits a high judicial official. Demeanor and temperament are very important. For instance, it is sometimes difficult for a judge to be restrained when an attorney is deliberately attempting to argue with the court.... But the judge must insist that the attorney respect not the judge's personal dignity, but the dignity of the office that the judge represents. And it is an art to learn how to control the attorneys in your courtroom.

Some of the finest judges that I know in the federal system have never held an attorney in contempt, have never punished an attorney. By their demeanor, by their stature, by the way they comport themselves, they bring such respect to the courtroom that no attorney would ever dare cross the line of improper conduct before that judge....

Every litigant wants a fair hearing. And that hearing has to have the perception and the reality of being neutral.... The judge must ensure that the hearing is fair in any number of ways. He or she has to give equal time to all sides. He or she has to be expeditious.

And if a litigant gets a fair hearing, most of them think that justice has been done. Most people who have a cause that they bring to the court are convinced that if only a neutral, fair person will listen to them, justice will be done.

Battle for Neutrality

Judges, as part of their personal and professional code, must avoid conflicts of interest. Some of you may have families in agriculture or business or industry. Does this affect your mind- set? Does this affect your attitude? Are you from a particular region of the country so that this affects the way you decide a case? These things all have a bearing on your outlook.

But the secret of being a judge who has a high standard of ethics is that you never stop exploring yourself. I have been a judge for over 20 years, and I am surprised how often I have to go back to the very beginning and ask, "Am I controlled by some hidden bias, some predisposition, some predilection, some prejudice that even I cannot see? What is it that is urging me to decide the case in this particular way?" I have to examine my own background and my own intellectual position to ensure that I am being fair.

The battle for neutrality, the battle for fairness in the judge's mind never ends. You have to have some outward structures that enable you to strive for perfect neutrality...but you may never reach it because we are all the product of our own biases and background.

Canons of Ethics

There are, however, certain basic rules for a fair hearing. First, you cannot have a financial or a personal interest in the case that you're hearing. This sounds simple enough, but what if a member of your family owns stock in a corporation or some of your friends have told you that they hope the case will come out a certain way? This is a conflict of interest and you must resist it.

In the United States -- and I'm talking about the federal judiciary -- the personal code of conduct is fortified by written canons of ethics. So in my view, the personal code of conduct should be reflected in a written code of ethics, and judges should talk about that code.

When you hear or read the U.S. code of ethics, it sounds so simple, so basic, so elementary, that you might think everybody would agree with it. It sounds almost simplistic, like a platitude. Let me read the seven canons of ethics. These precepts are principles with which no one could disagree.

• A judge should uphold the integrity and independence of the judiciary.

• A judge should avoid impropriety and the appearance of impropriety in all activities.

• A judge should perform the duties of the office impartially and diligently.

• A judge may engage in extra-judicial activities to improve the law, the legal system and the administration of justice.

• A judge should regulate extra-judicial activities to minimize the risk of conflict with judicial duties.

• A judge should regularly file reports of compensation received for law-related and extra-judicial activities; and

• A judge should refrain from political activity.

Some of these canons, including disclosure, reflect the official position of the judiciary of the United States principally to avoid financial conflicts. We are required by law to file a public statement that lists all of our property, all of our assets, all of our holdings and all of our income.... We were so concerned to ensure the appearance of neutrality, that we insisted that all a judge's holdings must be disclosed. For example, if a judge owns even one share of stock, or if a spouse or a member of the judge's family owns one share of stock, that judge is mandatorily disqualified from participating in a case that is connected to that company.... Or if the judge thinks that he or she has a sufficient interest in a case so that neutrality cannot be ensured, the judge should not sit, even if the attorneys ask the judge to do so....

A Committee of Judges

In the U.S. federal judiciary, we have a committee of judges that answers questions from all members of the judiciary who have concerns about judicial ethics.... The committee gives the judge not only some advice and some principles to think about and to consider, but it also gives the judge some protection. If the judge is later criticized for hearing a case, he or she says, "Well, I wrote about this to the committee and the committee agrees with me."

Let me give you an example. We had a judge who had spent time on a very complex anti-trust case. During the case, he met a lady and they were married. He found out that his wife had a substantial number of shares of stock in the corporations that he was dealing with, and so he wrote to the committee asking what he should do....

So, an ethical system should have a personal and professional code; it should have a written system of ethics, and it should have a mechanism for enforcing them.

Acknowledging A Judicial Code

From time to time, a judge will dishonor the judicial oath and dishonor the bench. This brings the law as a whole into disrepute. It is tragic, but judges are human, and of course, they are subject to human failings....

In the federal system in the United States, a judge can be removed only by being impeached by the U.S. Senate. There have been only seven instances in our 200-year history in which the Senate has had to remove a judge. Some other judges have resigned under pressure...because of such things as corruption, bribes, alcoholism or mental instability.

In addition to removal of a judge by impeachment, the United States has a disciplinary mechanism in which judges are admonished or reprimanded for misbehavior. This is controlled by the judiciary itself, and I think it very important that any mechanism for the censure or reprimand of judges short of removal should be within the hands of the judiciary. But in turn, the judiciary ought to have a strong enough ethic, a strong enough tradition of fairness and independence that it can deal with its own problems....

This is part of judicial independence. It doesn't mean that we must conceal or protect members of our own guild; it means we must be forthright and vigorous in acknowledging that there must be a judicial code, that it must be specific, that we must understand what it is and that we must enforce it.

I have gone on for some time, and now I would like to take your questions.

QUESTION: The Slovenian constitution has a special provision stipulating that a judge may be a member of a political party, but he or she shall not hold any office in a political organization. Serious questions arose during the local and state election campaigns as to whether a judge may identify himself or herself as a member of a political party, and whether a judge may publicly endorse a non-judicial candidate for public office. Do you think that such political activity may be considered inappropriate?

JUSTICE KENNEDY: In the U.S. structure, we have a federal judiciary, of which I am a member, and 50 separate state judiciaries. Some of the answers that I will give you today reflect the federal tradition, which is more rigorous, more remote, more insistent on separation of powers. And so I'll give you two answers: a state answer and a federal answer.

In the federal tradition, we would be horrified if a judge endorsed a political candidate. We think this is inconsistent with the separation of powers that must pertain in our constitutional system. We think judges should not have a political identity.

In the state system, a number of judges are elected. This causes our friends in many European countries to wonder if that judge can ever be independent if he or she is chosen by election. This is beginning to cause a tremendous amount of discussion in the United States, too, because we have the problem of tremendous amounts of money being put into television campaigns, sometimes for judges. So the question you ask about judges and politics is a very sensitive one in the United States.

If the judiciary is going to be independent, it must divorce itself from political activities. A judiciary cannot be caught up in the partisan disputes that a vigorous political system necessarily engages in. And so I do not think that it is wise to have judicial/political labels added to a judge's name, and I certainly do not think that a judge should endorse a political candidate. One of the sacrifices that you make when you go to the judiciary is that there are certain parts of public and private life that you can no longer participate in, and ultimately, you will bring disrespect to the neutrality of the judiciary if you engage in political affairs....

I think promotions and evaluations of judges must be on their merits as scholars and of their commitment to the neutral principles of the law. So to the extent that your culture and your political system allows it, I would take every possible step to divorce the judge from political endorsements and political activity.

QUESTION: Slovenia is now in the middle of a debate about constitutional changes. Do you see any obstacles for an association of judges to contribute to the improvement of the constitutional law by organizing discussions or participating in preparing a constitutional draft?

JUSTICE KENNEDY: Judges exercise power as part of the governmental apparatus. And so, it is necessary for judges -- with their professional experience and their commitment to neutrality -- to engage in those discussions and activities which will improve the law.

In the United States, we have specific rulings in our canons which not only permit but encourage judges to teach, to engage in activities to improve the legal system....

When U.S. judges look for allies, we often go to our friends and former colleagues.... We do this openly, explaining in a public letter what our judicial concerns are. We cannot be so removed from the world that we can or should ignore issues and legislation and policies that affect the judiciary, and I think it's quite appropriate for a judge to engage in such activities and discussions.

A judge must be very careful though, to make clear that the judge is doing this as an extra-judicial activity, and will not engage in such discussions on the bench or put it in his or her opinions or writings.

QUESTION: I have read your code of judicial conduct...and I would like to know something more about the provisions of the enforcement of these rules, and in case of transgression, what are the consequences and who enforces them?

JUSTICE KENNEDY: In the judiciary of the United States, we have in each region what we call a judicial circuit. Every state and the District of Columbia belongs to one of 12 different circuits. Each of those circuits has a chief judge and each one of those chief judges has a committee, and it consists of half trial judges and half appellate judges. Any citizen can make -- or any other judge can make -- a complaint about another judge.

Some of these complaints are simply frivolous. They come from a disappointed litigant who makes some unfounded charge against the judge. These are quickly investigated and dismissed. If there are more serious transgressions alleged, then there are a series of steps. In some instances, the chief judge and the committee simply call the judge before the committee and in private, counsel the judge.... There is no record of the proceedings of the committee other than to say that the complaint was acknowledged and disposed of.... The committee urges that this conduct not be repeated, points out the ethical violation and the damage that this judge does to the judiciary.

If the transgression is either repeated or is more serious, the discipline can include a public censure and an order from the chief judge that certain cases be withdrawn from the offending judge. The judge's calendar will be limited or cases which he or she has mishandled will be taken away.

If the transgression is very serious, amounting to a gross breach of judicial ethics or a crime, the chief judge refers the offending judge to the U.S. Senate for impeachment. This has happened twice, I think, in the last 10 years, and in both cases the judge was impeached.

Some of these problems occur because a judge is indifferent, insensitive or sometimes lazy.... Judges must be scholars. Some judges think that when they get on the bench, they can stop learning. They're wrong. When you get on the bench, that's when you have to begin your learning. This is part of your ethical duties. And some American judges -- all of whom are overworked and overloaded -- simply become careless and insensitive. That's why our best technique is counseling by other judges, and it works most of the time.

Let me just say that in some U.S. states, there are judicial removal commissions with private citizens represented, not judges. That's not the federal system. The mechanisms in the states are quite different from the ones I have described.

QUESTION: Allow me to pose a question regarding independence of judges through the following example. There is a bankruptcy case pending against a firm that issued junk bonds. There is a congressional investigation concerning responsibility of politicians involved in the issue of these junk bonds. Might a judge hearing the bankruptcy case be a witness in the investigation? And, if the answer is affirmative, what are the judge's devices against the questions of investigators about the rulings made in the pending bankruptcy case?

JUSTICE KENNEDY: I'm reluctant to comment on any specific case where I don't know all of the background, but your question does allow me to address certain general principles.... For the most part, our rules specifically prohibit a judge from being a character witness. But if a judge has certain information about activities that are under investigation, then like any other witness, the judge must give to the investigating authorities the facts that are within his or her knowledge....

QUESTION: Your code of judicial conduct says that "Judges may write, lecture, teach and speak on non-legal subjects and engage in the arts, sports and other social and recreational activities, but it must not conflict with their judicial duties." I would like to know, first, do they need any consent? For example, in our country we must have the consent of our president of the court if we want to engage in any extra-judicial activity. Second, can they receive payment for that extra-judicial activity? And third, is there a limit for that payment? For example, can a judge earn money from extra-judicial activities?

JUSTICE KENNEDY: In the federal system, judges can earn money from teaching and from writing. That salary is limited by federal law, and it is roughly 10 percent of the judge's salary. But you must get the permission of the chief judge of your court before doing so in order to ensure that it will not conflict with your judicial activities.... We can never take a fee for lecturing to any group that has an interest before the court. And we must lecture only to law schools or professional associations. Insofar as engaging in other activities like protests and rallies and so forth, judges cannot do that.

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In closing, I'd like to say that this has been a fascinating hour for me. There is a kinship, a bond, a tie of affection among all judges worldwide. We share the same aspirations, the same beliefs, the same trials and tribulations, the same sense of fulfillment and excitement when we advance the rule of law. As this century comes to a close, I think historians will say that one of the great advances in our civilization during this last 100 years has been the gift of law to people across the world. The rule of law is understood as being the birthright of every man and woman, and judges symbolize both the reality and the aspirations of that rule of law.

Thank you very much.