In May, at “Ends justify means as federal judge keeps “Whites and Men Only” country club membership,” I discussed the case of Bankruptcy Judge George Paine II who was under possible ethical misconduct review following an anonymous complaint about the judge’s 15-year membership in an exclusive “Whites Only” and “Men Only” Nashville, Tennessee country club. The Code of Conduct for United States Judges, states that “A judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.”
The “Giggle Test.”
In a decision that barely passed what an apocryphal judge famously calls “the giggle test,” a judicial peer review council reviewing the ethics complaint concluded that Judge Paine’s “long and sincere efforts to integrate the club” precluded a finding of ethical misconduct.
In the November ABA Journal, Jim McElhaney attributes “the ‘Giggle Test'” to a Judge Wallop who defines it as “A fundamental rule of advocacy. Never make any argument unless you can say it with a straight face.” See “No Laughing Matter: Failing the Giggle Test Might Leave You Crying.“
15-year fight to integrate?
Judge Paine has belonged to the Belle Meade Country Club for 15 years. But I’m hardly privy to the nature or extent of what he supposedly did during that time to bring the gospel of diversity and inclusion to the hoity-toity at the club. Perhaps, like the fan yelling from his recliner at the referee on his T.V., it was a hard solitary fight against an intractable foe. Such is the loneliness of the long distance reformer-from-within. Belle Meade is believed to be still segregated.
The problem, however, is that for any similarly situated judge, the code of judicial conduct doesn’t allow latitude on the subject of Nondiscriminatory Membership. Last week, the judicial council’s earlier 10-8 decision finding of no misconduct was belatedly reversed on appeal with a finding that the earlier decision was “clearly erroneous.” See“Panel faults judge’s membership in segregated club” – Yahoo! News.
The Committee on Judicial Conduct and Disability held that notwithstanding Judge Paine’s integration efforts, under the judicial code of conduct, he should have resigned long ago. But all that said, since Judge Paine has already announced his retirement, no discipline will be imposed.
Another futile quest.
And this inexplicably brings to mind something else that does indeed fail the “giggle test.” It’s O.J. Simpson and his ‘tireless’ search for “the real killers.” As was famously reported and derided at the time, it was a quest the inveterate golfer confined apparently only to the golf courses he played.
But had he been allowed and not been excluded because of race (and now, by incarceration), I have little doubt O.J. could have continued his ‘unflagging’ inquiries at yet another golf course. But never mind, the probes unquestionably persist while he does a 33-year stretch for robbery and kidnapping at the Lovelock Correctional Center in Nevada.