When 'Sorry' Isn't Enough for Racism

Why we shouldn't accept an apology from the federal judge who sent an offensive email about Obama.

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But in determining whether Cebull should be subjected to a sanction, the Judicial Council of the 9th Circuit should also look to the ABA Model Code of Judicial Conduct (pdf), which sets the standards of ethical conduct for all federal and state judges. The code identifies several ways in which Cebull's conduct warrants stronger action:

*Rule 1.2 of the Model Code requires judges to behave "at all times in a manner that promotes public confidence in the independence, integrity and impartiality of the judiciary." Both Cebull's transmission of the email and his explanation for why he did so violate the standard set out in this rule.

*Rule 2.3 in the Model Code instructs that "a judge shall not in the performance of judicial duties, by words or conduct manifest bias or prejudice." The code specifically identifies "attempted humor based upon stereotypes" as an example of a "manifestation of bias." It is true that Cebull was not engaged in "judicial duties" when he sent this email, although the fact that he sent it from his federal account raises particular concerns.

*Rule 4.1 advises that "a judge ... shall not ... publicly endorse or oppose a candidate for any public office." Cebull's explanation that he is "anti-Obama" violates the rule.

The Judicial Council should also consider the fact that Cebull's conduct, which has raised questions about his impartiality, may provide grounds for his recusal from participation in a variety of cases. Cebull has said that he has "never considered himself" to be racist. But the federal statute governing the recusal of judges is focused on how a reasonable person would view the judge's conduct, not the judge's own view of himself.

Cebull's parsed logic -- arguing that although the email he sent is racist, he is not -- may be the kind of twisted logic that makes sense to a lawyer ("that depends on what the meaning of 'is' is"), but the average reasonable person is unlikely to find his argument convincing. If I were a black litigant or a woman of any race appearing before Cebull, I would have strong doubts about his fairness.

Cebull's conduct demonstrates an alarming lack of judgment and a disturbing failure to understand the power of his position. He has diminished the dignity of his office. He has also raised a credible inference of racial bias.

He deserves credit for promptly offering what appears to be a sincere and unadorned apology. But this personal apology is irrelevant to any questions legitimately raised by the larger public and, in the future, by those litigants who may appear before Cebull. They are entitled to be served by a chief judge who, in both fact and appearance, upholds the highest standards of impartiality and propriety. 

Sherrilyn A. Ifill is a professor at the University of Maryland Francis King Carey School of Law in Baltimore and the author of On the Courthouse Lawn: Confronting the Legacy of Lynching in the 21st Century.

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