Clark, Matter, the Kansas Commission on Judicial Performance had publicly censured a Magistrate Judge who had posted nude pictures of himself on a “dating website for couples”—something the Commission concluded violated Canons that mandated that “Judges should maintain the dignity of judicial office at all times, and avoid both impropriety and the appearance of impropriety in their professional and personal lives” and that they not “demean the judicial office.”
Since then, the Magistrate Judge has retired and did not challenge the discipline. The court therefore decided to accept the decision. [retired judge’s]You must comply with the stipulations, and no further action is taken. Justice Caleb Stegall, however, wrote an intriguing concurrence that Justice KJ Wall joined. It struck me as well worth quoting.
It is true that there was once a time in society where consensual and private sexual acts were not subject to regulation by government. That time has gone, good or bad (or both). Society has now made clear, through a series of judicial rulings that sexual conduct between consenting individuals isn’t the government’s business. Indeed, the scope of private behavior protected from government regulation must be broader than simply sexual conduct….
However, technology’s rapid advancements have outpaced privacy laws. Surveillance of all kinds (including the kind of self-surveillance practiced by Judge Clark) abetted by ubiquitous high-powered video and audio recording devices—along with the ease of publication and distribution offered by digital social media—has allowed for substantial increase in governmental and employer intrusion into the private lives of individuals.
The whims and desires of thousands-and-one people have made us a society that is not only subject to one watcher. It’s not a stern, monolithic Big Brother we must face as we live our day, but a large group of Little Brothers with the most bizarre devices and loyalties that Orwell wrote 60 years ago. By turning “our lenses on ourselves in the quest for attention by any means” the “invasion of privacy … has been democratized.” Clark is now aware of the full truth.
It is possible to accept the reality of 24-hour surveillance as an advantage and not just as a nuisance. As many people have noticed, surveillance is now at its end. It may even be described as collusion between little and big brothers. The vast data that little brother has collected about the citizens is being used by the government to track the population.[L]Surveillance data is constantly being transferred between corporations and government. One consequence of this is that it’s hard to get effective laws passed to curb corporate surveillance—governments don’t really want to limit their own access to data by crippling the corporate hand that feeds them.'”
Reminding me of the fact that “greatest threats to liberty” can often be found in “insidious invasion by men of great zeal, who are well-meaning, but not understanding,” I’m reminded. So, I am reminded that wisdom counsels that big brother isn’t obliged to respond to every tittle-tattle he receives from his ill-meaning brothers. Here is where we find ourselves.
If Judge Clark’s sexual misconduct was uncovered by the self-surveilling, then the Examiner and the Commission would be obligated to take action.
However, Judge Clark’s actions had no real connection with his position as judge. But what’s the truth? In short, Judge Clark has embarrassed us—the Examiner, the Commission, this court, the judiciary, and the wider legal community. This may well be our greatest sin. Complex and widespread shunning and shame rituals that our society has enacted over the past decades can best be described as an elaborate way to deal with collective embarrassment. The act of “cancelling” embarrassing people is a semi-religious method to purge collective shame and guilt.
In this instance, the Examiner and panel acted as grand investigators for a supposedly scandalized public. The Examiner’s filings below passionately decry Judge Clark’s behavior—quoting Re Singletary (Pa. Ct. Jud. Disc. 2012), for the claim that the public does not want its “judges to be conducting photo sessions featuring the judicial penis and then to be sending the photos over the electronic airwaves to another person—thereby placing that person in a position to further publish the photos to anyone he or she may deem deserving.” The Examiner also criticized Judge Clark’s conduct during oral argument. Judge Clark was described as “grooming his private organs for purposes of taking a photograph … not for him to look at himself” but to “give to other people.” According to the Examiner, this does nothing “to enhance the integrity” of the judiciary. …
But who is really being scandalized here? As with the excessive rhetoric, the legal justifications given by the Examiner and panel in this case are thin cover for the naked embarrassment—and the accompanying need to close ranks and restore a facade of judicial superiority—felt by all.
The panel, for example, insists that Code and Code-related discipline are intended to make sure judges “exercise behavior in their personal lives that should be emulated by others.” To fulfill this “unique function of judges”, every judge must understand that the black robe “imposes a higher standard on them” and they will be disciplined if they fail to adhere to it. This undefined higher standard: Does the panel suggest that judges are required to only have traditional relationships with their partners? Is it really possible to envision a morally stratified society where judges are in the top and most powerful positions, but mortals follow a more basic standard. Does the Code demand this?
The panel’s understanding of the “role of judges in our society” partakes of a certain kind of judicial rhetoric afoot today—the rhetoric of judicial supremacy. A lot of people are making an effort to see the judge as an idealized type of ruler. He or she is set apart and consecrated in some holy order called “law” and worthy of being obeyed in large part because of their moral and intellectual superiority. Judges aren’t a class of priestly rulers in a society that is dedicated to the rule and administration of law. The role model of society is not supposed to come from judges. This is absurd to think.
This case shows us that one result of elevating judges into the position of “supreme arbiters” of society is that there will be bizarre replays and old religious controversies about the qualification of priests to conduct religious rites. Or consider another, more mundane example—the panel’s finding that Judge Clark’s picture project was “public” simply because those pictures could one day be made public. The law and common sense cannot be used to define “public”. This is a very similar situation to what the Legislature recently declared “revenge porn” and “nonconsensual poinography.” Unwittingly, it seems that both the Examiner (and the Commission) have become complicit in one man’s plot to take out Judge Clark. He “disseminated” nude pictures and photos of his sexual activities.
What would the Examiner have done if they used so disparaging terms and such detailed descriptions of the lives and practices to describe other more socially acceptable sexual minorities’ daily life? For example, would the Examiner ever file a case based on intimate photographs taken by a Kansas judge and given to him by his homosexual lover? How about photos of heterosexual couples engaging in unconventional, consensual sexual acts? These were given by the Examiner after an ugly divorce. This is the old-fashioned game in which the powerful seek to make excuses for people without any real friends?
I may be an unexpected defender of “consensually non-monogamous” judges—and I have no difficulty condemning adultery as morally destructive—but above all else, the rule of law condemns the arbitrary and unaccountable power of the state to pick winners and losers, reward friends and punish enemies, and protect its own interests above the public’s. The real danger to the integrity and legitimacy of the judiciary is their hypocrisy and other abuses. Even if there are a few snarky, embarrassing moments of misadventure or a couple of bedroom peccadillos, the rule of law will not collapse. But it is not so strong it can long endure the misrule of arbitrary double standards—which amount to a special kind of breach of the social contract.
One objection could be raised quickly that morality and the integrity of public officials are important. Plus, if someone becomes a public officer like a judge or a prosecutor, they have agreed to make their private lives a matter in the public’s interest. This is true. But it is a grave mistake to think that either the Commission, the Examiner, or this court represent the mores of the public—mores which, as every honest political observer would admit, prove to be inscrutable at times. Even if we knew such mores, who would be authorized to enforce its moral convictions?
This does not mean that public officials in our government system are exempt from criticism and sanction because of their personal behavior. They’re not. They aren’t. There are two clear and available political means for the public to express its own moral qualms about a public official’s private behavior and character—sexual or otherwise. You can vote at the ballot box or in an impeachment proceeding.
Judge Clark could easily and correctly have been unseated by his constituents had they determined that his character was not of the kind they desired for their judges…. And there is yet a third tribunal of judgment on the conduct of judges—the legislative tribunal of a court of impeachment….
Today’s opinion should not be taken to mean that I believe Judge Clark should have been reinstated as a judge. My judgment is more limited—if a public official is to be removed from office or otherwise sanctioned for lawful private conduct unrelated to the performance of his or her public duties, that sanction must be procured through political means. The public is free to choose for themselves what constitutes acceptable character for the job.
Sin is a part of us all. This truth is one of its pillars. Judges are not “angels”—to put it in Madisonian terms. The Federalist No. 51 (Alexander Hamilton, James Madison). “If men were angels .”). It is not intended to create an image of judges as demigods of angels or Mosaic lawyers. It is quite the opposite—to guard against the very real danger of judges as ordinary human beings tempted to abuse their power in vain and self-interested ways. The Code protects very practically against official and public misdeeds—it is not concerned with preserving judicial authority grounded in moral superiority. Contrary to popular belief, legitimate exercising of judicial authorities flows from those who are subject to a constitution process and not from any inherent moral qualities that the judge possesses.
None of us are entitled or born to be rulers in this country because we have no real or imagined superiority. To suppose otherwise is to sow the seeds of passivity and apathy on the one hand (a people not given to the virtue of self-government because it is not expected of them)—and cynicism and disillusionment (when the lie is inevitably exposed), on the other. If the whole of our private lives could be exposed, any judge holding to such a standard can withstand ridicule, embarrassment and condemnation. Your imagination does not have to immediately turn towards the sexual or salacious. Imagine a judge being frustrated by a parent. A judge who fails to resolve an argument between spouses. Oder a judge who makes an inappropriate joke.
I am reminded, at last, of scorned and humiliated Hester Prynne—pondering the “hidden sin” in every human heart, musing over the fact that “if truth were everywhere to be shown, a scarlet letter would blaze forth on many a bosom.” Hawthorne’s lesson in his classic isn’t about sexual liberation, although that is what is commonly believed. It is more that moral stratification in human societies tends to resist the natural equality and democratization that results from acknowledging universal failure.
“There is no one righteous. Romans 3:10 (King James Version). This kind of equality is not possible in the legal system. Instead, the systems of punishment and accusation are often driven by the “narcissistic pleasure” that the powerful take from “being able think.” [themselves] better than others”—rather than from legitimate and just efforts to protect and provide for the common good of society. Freud, The Discontents of Civilization. The most crucial question regarding public justice in the world is whether or not a person can be legitimately sanctioned by the law.
The only exception to the rule is the private lawful acts of public officials that are not related to public duties. This requires a political solution. Otherwise, the very will of the public may be thwarted by a government purporting to act on the public’s behalf—but in truth, acting only to elevate and insulate itself….