A Discussion on Applied Judicial Ethics in the COVID-19 Pandemic with Judge Mary Margaret McKeown

Judge Margaret McKeown (top row, far right), Judge Mary Murguía (second row, center) and Judge Carlos Bea (top row, center) — all three US Circuit Judges of the United States Court of Appeals for the Ninth Circuit, and several ABA ROLI staffers during the event, Applied Judicial Ethics and the Role of the Judge During the Pandemic on February 24, 2021.

Despite the many challenges faced by judicial systems around the world due to the COVID-19 pandemic, judges continue to incorporate the values of judicial ethics, like transparency and judicial independence, in their everyday duties. For example, judges are learning now to navigate the challenges apparent in their caseloads, such as the difficulties in access to justice, which have posed questions for citizens and justice officers on how to respond to these rapid changes. In Colombia, an ethical issue that has come to the forefront of judicial practice during the pandemic is the principle of “immediacy.” This tenet of Colombian judicial ethics provides that the judge must be personally present and attend all procedures related to a case, including evidence gathering during testimonies and cross-examinations. Through ABA ROLI’s program, Strengthening Judicial Education in Colombia, we have contributed to the capacity of Colombian judges to adeptly adapt to the practical considerations of the pandemic and apply ethical principles necessary for a strong judiciary.

On February 24, ABA ROLI hosted a panel discussion on ethics and judicial independence with Judge Margaret McKeown, Judge Mary Murguía and Judge Carlos Bea, which was part of a three-part judicial ethics training titled “Applied Judicial Ethics and the Role of the Judge During the Pandemic.” The training series was led by Judge Margaret McKeown and was aimed at addressing experiences from the judiciary regarding current ethical challenges arising during the pandemic and provided recommendations and best practices.

During the discussion, the three US Circuit Judges of the United States Court of Appeals for the Ninth Circuit emphasized the critical role judicial independence has in government and society — characterizing it not as an end, but as a means to an end. They also discussed how impartiality is critical to making judgments that are free from influence from the other branches of government — as judges are often associated with previous political affiliations or personal beliefs. The judges also discussed security concerns faced by judges, including specific issues related to virtual hearings. Finally, the panel addressed the importance of educating the public about the role of the judge in society.

Following this discussion, ABA ROLI interviewed Judge Margaret McKeown to further discuss topics related to judicial independence, transparency, and the opportunities that derive from the issues raised by the pandemic.

ABA ROLI: What are some of the contributions and setbacks that have been caused by the use of technology in implementing judicial procedures during the pandemic?

Judge McKeown: The positive side of the use of technology during the pandemic is greater transparency and public access. Also, certain scheduling and other short hearings can now be done via video, saving the parties, counsel and the court time and expense. On the downside, there is a loss of human interaction that cannot be fully replicated by technology. Another downside has been the increase in courts’ backlogs. I anticipate that going forward, courts will endeavor to adapt some of the positive uses of technology and that there will be more of a hybrid of in-person and virtual appearances.

ABA ROLI: What are one or two practical considerations judges can make to ensure they maintain the independence of their role and objectivity in their judgment when making decisions that impact policy-making?

Judge McKeown: Of course judges do not make policy. But judges are continually faced with cases that have societal implications. The first thing is to reinforce the independence of the judiciary from the other branches of government. The judiciary plays a singular and important role in deciding cases and interpreting the law. And just as important, the judge needs to be secure that the decision will be followed and implemented. Judges realize that being a judge is not a popularity contest. To instill confidence in the judiciary, judges should explain the rationale and basis for their decisions in language that is accessible to the public and provides a foundation for future cases.

ABA ROLI: How can social media be used ethically and responsibly as a tool for judicial transparency?

Judge McKeown: As institutions, courts can use social media to provide basic information about the judicial system, the court, and access to court procedures. Some courts use social media to provide notice of hearings of noteworthy cases, summaries of decisions of particular interest to the public, and the decisions themselves; although this same information is generally available on the court’s website as well. Social media is an additional tool that provides transparency and public access. Courts also use social media to hire for administrative positions since this provides a broader pool of candidates and is a supplemental means of reaching out to the public.

While government institutions struggle under the limitations posed by COVID-19, it is critical that judges incorporate sound ethical principles. ABA ROLI supports the Colombian judiciary and judiciaries around the world in achieving that goal.

Learn more about our work in Latin America and the Caribbean.