Years ago, I testified before a New York State commission about what should be permissible in judicial elections. I argued that judges should be able to campaign on whatever positions they chose, which had been considered unseemly and inappropriate since judges were supposed to be impartial. Why put your bias on display?

My argument was twofold, that the sanitized campaigning was fairly silly, with judicial candidates allowed to run on their resume, which law school they attended and the jobs they held, which was essentially meaningless information to voters. I remember saying, “if one candidate went to Harvard Law School and another went to Brooklyn, does Harvard win?” A judge on the bench replied, “Not in New York,” to which we all had a good laugh.

The second point I raised was that we were not so naive as to believe that judges held no biases as lawyers, and some would carry those biases onto the bench. Was it not better to have them out in the open, known to voters (or at least those few who cared) before voting rather than find out just how biased they were after they put the robe on? Granted, voting on judges is a fools errand under the best of circumstances, but better the bias we knew than the one we didn’t.

The commission ultimately did nothing useful and no meaningful changes came of it. But the question of judicial bias was put on full display, and by that I mean the side of a bus, in the case of Washington State Superior Court Judge David Keenan.

The Commission on Judicial Conduct (Commission) ruled that Judge David S. Keenan, a King County Superior Court judge, violated the Code of Judicial Conduct (CJC or Code) when he approved a bus advertisement for North Seattle College. The ad pictured him and stated, in part, “A Superior Court Judge, David Keenan got into law in part to advocate for marginalized communities.” North Seattle College is a nonprofit community college where Judge Keenan received both his high school and his associate’s degrees. The ad ran for three weeks as part of North Seattle College’s fall enrollment campaign.

Notably, this didn’t happen in the context of a judicial campaign advertisement, to get himself elected by suggesting his bias favored “marginalized communities.” This was an ad for his alma mater, serving two obvious functions. First, it showed that their grads could become a judge, which will impress young people who don’t know any better. Second, it played into the current climate of favoring social justice, which the school obviously sought to promote to that same cohort. Hey, if that’s what it’s trying to sell, then this was a useful advertisement.

The Commission on Judicial Conduct, keepers of the faith that they are, was not impressed.

The Commission ruled that Judge Keenan’s decision to approve the bus ad violated Rule 1.2 because it showed that he was partial to “marginalized communities” and, hence, the ad undermined public confidence in the judiciary.

Beginning with the plain language, Rule 1.2 states: “A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”

While Rule 1.2 applies to a judge “at all times,” and not merely when he’s on the bench, and applies both to actual impropriety and its appearance, it reflects that judges need to be circumspect whenever it comes to conduct that reflects poorly on “the independence, integrity, and impartiality of the judiciary.” Commissions tend to be extremely cautious gatekeepers, such that any whiff of impropriety will result in chorus of sniffles and “tsks.”

The Washington Supreme Court, on the other hand, wasn’t quite as concerned.

The Commission did make a “factual” finding that Judge Keenan admitted that the ad could confuse the public into thinking that he advocated for marginalized communities from the bench. And Judge Keenan did state that he could see how the ad “might” confuse the public.

But he did not state that it would make a reasonable person think that he would not be impartial—he made that statement in the context of explaining his willingness to hear and consider the views of colleagues. And regardless of Judge Keenan’s testimony, whether a judge’s description of his reasons for attending law school would cause an objective, reasonable person to infer that he lacked “an open mind in considering issues that may come before [him]” as a judge is a matter that we review de novo.

The court made a similar observation to the one I proffered in New York.

[A]ll judges decide to join the legal profession for one reason or another, and stating why you got into the law does not mean that you cannot rule impartially in a case.

That people “might” be misled into believing  that this reflected a bias in favor of marginalized communities is certainly true, but something that can’t be helped. People are going to believe things, rightly or wrongly, no matter what. If a judge is endorsed by the police union, does that not suggest the cops prefer that judge because he will be on their side? Does that not suggest a bias, that they might be less than impartial toward police?

But there is another cognitive error here, one that’s become very common, particularly within the reform community, that a judge who decided, at a tender age, to become a lawyer because of social justice motives, and perhaps even served as a criminal defense lawyer, didn’t grow up along the way to develop a bias against criminal defendants. Remember The Prince of Darkness, Hardass Harold Rothwax? It happens with far greater regularity than simpletons realize. Nobody knows defendants better than former criminal defense lawyers, and what they know does not necessarily endear the judge to his former clients.

While the ad telling of why Judge Keenan entered law as a profession says nothing about how he feels today, or whether his purpose as a young man prevents him from being a fair and impartial judge now, it serves to feed into the assumptions of the young and clueless. That’s what makes it a useful advertisement. It also renders it harmless as a display of current bias to a reasonable person, if such a person exists anymore.