Nixon-Burger Ethical Breach: You Judge
In late 1972, President Richard Nixon and Chief Justice Warren Burger conferred via telephone on two cases pending before the United States Supreme Court on which Burger sat at that time. For trial lawyers, whether it be in Memphis, Tennessee or elsewhere, such conversations are completely inappropriate. The bench, the bar and the public have all suffered harm from the perception that lawsuit deals are cut in dark backrooms. I have never seen any evidence of this in my over 30 years of trying civil and criminal cases in Tennessee and the Mid South.
Now, we have evidence that the United States Supreme Court was influenced, or an attempt was made to influence, the outcome of matters pending before the Court. Miller vs. California was not decided until months after this conversation between Nixon and Burger. In the same tape recorded conversation, Nixon and Burger agreed that a decision on certain upcoming civil rights cases should be decided "as far down the road" as possible. Had something like this occurred in Memphis, it would have required both the Judge and the lawyer (Yes, Nixon was a lawyer in California.) involved to report this event to their ethics boards as a potential ethical breach of the ethics rules for both lawyers and judges. See, Code of Judicial Conduct i.e. A judge should not allow family, social, or other relationships to influence judicial conduct or judgment.
Let us suppose, for example, that I was involved in a personal injury case which was yet to be tried by Judge Ajax. Let us further suppose that in a casual conversation with the Judge I mentioned that Shelby County would be far better off if the case was tried as far down the road as possible. Judge Ajax then agreed. What follows is a snippet of the conversation that we have just discussed between Nixon and Burger. Does this indicate fairness and avoiding even the appearance of an impropriety? You be the judge.
