Like Constitutions, Interpreting Ethics Codes Requires Understanding, Humility, and Transparency

Here's a short opinion piece by Walter Dellinger, head of the Office of Legal Counsel under Pres. Clinton. It's part of a series of such pieces that will appear in tomorrow's Washington Post. The opinions concern what Pres. Obama should be looking for in his first Supreme Court nominee. After Dellinger's opinion piece, I tie his ideas into government ethics. I think they're very important observations.

During the campaign, candidate Obama said that he would seek justices with a capacity for "empathy." Some critics said that empathy was an illegitimate, lawless criterion. This afternoon, the president doubled down: "I will seek someone who understands justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives."

The president is right to reject the idea that judging is a mechanical exercise. It requires the exercise of judgment, which makes room for a candid consideration of how legal rules do affect the daily realities of people's lives.

Far too few judges, liberal and conservative, candidly acknowledge that the questions before them are difficult, the answer often not clear, the history not fully accessible and the text far from unambiguous. Majority and dissenting opinions are too often written with untenable certitude about the "clearly right answer." As my Duke Law School colleague Jefferson Powell wrote in his book "Constitutional Conscience," a truly ethical judge will be honest about the inescapable fact "that constitutional decision making is a creative endeavor" and will "make the arguments to herself and others with candor, including an overt recognition of the ambiguities and uncertainties [involved]." The good judge will employ her legal craft "not to conceal difficulties or hidden springs of decision but to render them transparent and thus to enable the reader to evaluate critically the conclusions reached by the writer." With that honesty about the inevitability of choice should come humility about one's role as a judge.

I find that far too often, government lawyers involved in ethics cases treat their role as a mechanical exercise, in which they are required only to state one side of the matter, and limit themselves to the law.

As with constitutional matters, ethical matters involve issues and considerations that go far beyond the law. I think the same things that Dellinger sees too lacking in judges, I see too lacking in government lawyers dealing with ethics:  the candid consideration of how ethics laws and ethics violations affect citizens and their government, and the candid consideration of the ambiguities, uncertainties, and limitations in ethics laws.

Law cannot possibly deal with every aspect of government ethics, no more than a constitution can deal with every aspect of our democracy or civil rights. In fact, ethics codes deal with a small minority of real-world ethics situations. The people involved in an ethics program, including officials, lawyers, and ethics commission members, must supply the judgment, sensitivity, and humility necessary to deal with all the gray areas and all the areas that aren't covered at all.

Ethics is not an area where strict construction, partisanship, or certitude belong. Sensitivity to appearances, to democratic principles, and to fairness are what is most important.

And transparency cannot be overstressed. This is not a natural skill for lawyers, but in the ethics field, I think it is an important goal to strive for.

Robert Wechsler
Director of Research-Retired, City Ethics

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