The California Supreme Court has approved a change to its Code of Judicial Ethics, which would allow state judges to publicly comment on pending proceedings, including their own decisions and decisions of their colleagues. The most important change is to Canon 3B(9) and associated comments. The amended Canon now reads, in pertinent part:
In connection with a judicial election or recall campaign, this canon does not prohibit any judge from making a public comment about a pending proceeding, provided (a) the comment would not reasonably be expected to affect the outcome or impair the fairness of the proceeding, and (b) the comment is about the procedural, factual, or legal basis of a decision about which a judge has been criticized during the election or recall campaign.
These changes have been in the works for some time, a reaction to the ugly 2018 campaign to recall state judge Aaron Persky. The sentiment is understandable, given that judges who produce unpopular decisions are sitting ducks in an election when they cannot even respond to unfair or oversimplified attacks by their antagonists. Permitting judges to at least clarify the context of their decisions, or to comment on the overall qualifications of a fellow judge whose career is being reduced to a single decision, may prevent voters from removing a judge rashly.
But there is still reason to be worried about whether this change will work for the better. Now that judges are permitted to comment on pending proceedings, they have less of an excuse to not comment when pressed by the media or an election opponent. Some judges might feel pressure to comment even when they do not want to do so. Others might choose not to comment and find themselves under pressure to justify that decision. Put differently, in some ways the original canon was cleaner because judges had no choice but to remain silent. Now they have more freedom, and that can be a blessing and a curse.
The new rules go into effect July 1. It will be a development worth watching.