Baseball, Kenesaw Mountain Landis, and the Judicial Strike Zone –Home Run or Foul on the Play?

Baseball has the largest library of law and love and custom and ritual, and therefore, in a nation that fundamentally believes it is a nation under law, baseball is America’s most privileged version of the level field.

A. Bartlet Giamatti¹

The United States prides itself on a legal system based on upholding the rule of law that includes an impressive list of judicial luminaries from John Marshall to Thurgood Marshall, to more recently Anthony Scalia and Ruth Bader Ginsberg—justices with differing viewpoints yet known to be fast friends. Likewise, there are many well- known American baseball legends, Babe Ruth, Lou Gehrig, Micky Mantle, and Shoeless Joe Jackson to name a few.

Why write an article that combines baseball and judicial ethics? The answer lies in the less well-known story of Kenesaw Mountain Landis, a judge turned baseball commissioner who inspired not only baseball fans, but also the American Bar Association’s first Judicial Canon of Ethics. His story weaves together the parallel stories of baseball’s greatest scandal and the development of the judicial canons, with a special thread dedicated to the development of the appearance of impropriety standard. The story begins with the appointment of a judge in 1905 followed by a 1919 baseball gambling scandal.

The Judge (1905-1922)

President Theodore Roosevelt appointed Landis to the Federal District Court in Illinois in 1905. Landis’s presided in Chicago’s,² two-story mahogany, brass, and marble courtroom containing murals of King John conceding the Magna Carta and Moses with the Ten Commandments. A stage appropriate for a fifteen-year dynamic judicial career.

Judge’s Landis’ early antitrust cases involved railroad rebates and corruption. After a famous case involving John D. Rockefeller, the New York Times reported: Judge Kenesaw M. Landis of the United States District Court today fined the Standard Oil Company $29,240,000 the extreme limit of the penalty fixed for the acceptance of illegal rebates. In the announcement he closes, so far as his court is concerned, what is regarded as the most important case against a trust in the history of the United States.³

Judge Landis then achieved “most talked of person in America” status.⁴ The press popularized his opinions and courtroom antics.⁵ Judge Landis rendered decisions based not only on jurisprudence, but also on popular sentiment.  His opinions sometimes reflected his determination of the correct decision for the current societal context regardless of established legal precedent.⁶

Baseball’s Black Sox Scandal

The New York Times reported the scandal with the September 1920 headline: Eight White Sox Players are Indicted on Charge of Fixing 1919 World Series; Cicotte Got $10,000 and Jackson $5,000.⁷   Baseball’s team owners, distraught over the sullying of the game, decided to restore baseball’s reputation by hiring a commissioner.

The owners approached Judge Landis, an overt baseball fan. He had presided over the 1915 baseball antitrust case and intentionally delayed ruling for “an entire baseball season and beyond” until the parties reached a settlement.⁸

On November 12, 1920, Judge Landis agreed to become the first baseball commissioner.⁹

The unusual ripple effect of Judge Landis’s service as a judge and the baseball commissioner would soon reach the world of judicial ethics and create the unusual story of baseball’s early woes and the creation of judicial canons.

The Baseball Commissioner (1920-1944)

Commissioner Landis’ charge was “to restore public faith in the professional baseball league”¹⁰ by employing any methods necessary “to bring to book anyone connected with baseball in any capacity, from ‘magnate’ to bat boy, who is suspected of conduct or associations detrimental to the best interests of the sport.”¹¹

Judge Landis, accustomed to having his judicial decisions appealed, insisted on having the final word as a condition of employment. He explained that he “wouldn’t take this job for all the gold in the world unless I knew my hands were free.”¹² The team owners awarded the commissioner broad powers and agreed to abide by his decisions.¹³

Commissioner Landis then imposed a lifetime ban on eight members of the Chicago White Sox for their alleged role in the 1919 World Series scandal¹⁴ despite their acquittal by a jury. He explained, “Regardless of the verdict of juries, no player that throws a ball game, no player that entertains proposals or promises to throw a game, no player that sits in a conference with a bunch of crooked players and gamblers where the ways and means of throwing games are discussed, and does not promptly tell his club about it, will ever again play professional baseball.”¹⁵ Thus, he imposed an appearance of impropriety standard in baseball prior to the existence of the judicial canons.

The baseball community credited Commissioner Landis with saving baseball.¹⁶ In fact, the National Baseball Hall of Fame inscription under his name reads: “Baseball’s first Commissioner; Elected, 1920 – died in office, 1944; His integrity and leadership established Baseball in the respect, esteem and affection of the American people.”¹⁷

The Ironic “First” Judicial Appearance of Impropriety

Although the baseball owners embraced Judge Landis’ dual roles, Congress and the judiciary disapproved. They believed that Commissioner Landis’ high-profile baseball position damaged judicial integrity.¹⁸ Moreover, the Commissioner’s substantial salary further flamed the fuel of discontent and the belief that Commissioner Landis would neglect his judicial duties.¹⁹ (Judicial salaries in 1920 were $7500.00 per year; the Commissioner’s annual salary began at $50,000.00.²⁰)

The United States Attorney General, A. Mitchell Palmer, investigated Judge Landis’s dual roles  and found: “There seems to be nothing as a matter of general law which would prohibit a district judge from receiving additional compensation for other than strictly judicial service, such as acting as arbitrator or commissioner.”²¹

Nonetheless, Congressman Benjamin F. Welty, a lame- duck representative from Ohio, sought to impeach the Judge.²² “This was a rare and extreme measure, as only six federal judges had been impeached at that point in American history, four of whom were convicted and removed from the bench.”²³

Congressman Welty moved to impeach Judge Landis on an alleged conflict of interest.²⁴ Judge Landis was charged with “neglecting his official duties for another gainful occupation not

connected therewith.”²⁵ Welty asserted that Judge Landis must be neglecting his duties since the obligations of his full-time judicial position would not allow for a second job.²⁶

Welty further complained that Judge Landis had become the “chief arbiter of a trust [which had been declared] illegal [yet at the baseball owners’] request remained on the Federal bench”²⁷ thereby further evidencing a conflict of interest. (Both the Court of Appeals and the US Supreme Court would eventually rule against the trust allegations.)

The House Judiciary Committee held a hearing after which it declined to further investigate. Ultimately, Judge Landis was never impeached.

The ABA also disapproved of Judge Landis’s dual roles but possessed little meaningful recourse. The ABA employed its only power, which was to censure Judge Landis based upon²⁸ the appearance of impropriety.²⁹ The ABA proclaimed that Judge Landis’s conduct “meets with our unqualified condemnation, as conduct unworthy of the office of Judge, derogatory to the dignity of the bench, and undermining public confidence in the independence of the judiciary.”³⁰

Judge Landis asserted that he had not committed any impropriety. Nevertheless, after confronting the critics for over a year, Judge Landis resigned from the bench in early 1922.³¹

The First Canons of Judicial Ethics

As evidenced by Judge Landis’s story, in 1922, a cohesive code of judicial ethics did not exist.  Judges could be removed via impeachment, address or recall, but the removal process was cumbersome and politically charged.³² Thus, Judge Landis’ conduct became a motivating factor

in the ABA’s establishment of a Commission on Judicial Ethics.³³ Chaired by Chief Justice William Taft,³⁴ the Commission drafted Thirty-four Canons of Judicial Ethics that were approved in 1924 as guidelines for the states.³⁵

The 1924 Canons admonished judges to avoid the appearance of impropriety in all professional and personal activities. Some of the literature attributes the repeated references to avoiding even a suspicion of improper conduct, to the outrage over Judge Landis’s conduct. Critics of the Canons asserted that a lack of specific guidance rendered them merely an ABA “wish list” of judicial conduct.³⁶ Illinois Supreme Court Justice Robert Shaw’s observed that the Canons did no more than caution judges to “abstain from all appearance of evil.”³⁷

Interestingly, the application of the “appearance of evil” to  judicial conduct predates the 1924 Canons in early court cases that cite Saint Paul’s appeal to the Thessalonians to “[a]bstain from the appearance of evil.” The courts, referencing Saint Paul’s plea, held that ‘[t]o keep the fountain of justice pure and above reproach, the very appearance of evil should be avoided’ by jurors, lawyers, litigants, witnesses, and judges.³⁸ Thus, the secularizing of evil by deeming it impropriety provides a logical explanation for the focus of the 1924 Canons.

Between 1924 and 1972 the Canons were cited by thirty-nine courts in determining whether a judge’s conduct had been unethical.  One federal court deemed the Canons to be an “admonition” of how judges should act.³⁹

The Judicial Canons and Impropriety Revisited: The 1972 Model Code

The 1924 Canons remained the normative standards until Supreme Court Justice Abe Fortas’ extrajudicial income garnered 1969 headlines.”⁴⁰

Justice Fortas accepted a $20,000.00 consulting fee from the Wolfson Family Foundation⁴¹  during an ongoing Securities and Exchange Commission investigation of Louis Wolfson, the director of the foundation.⁴² When Wolfson was later indicted for selling unregistered stock, Justice Fortas returned the consulting fee.⁴³

Justice Fortas had not violated the law; however, both the media and the ABA condemned his conduct as a breach of the appearance of impropriety.⁴⁴ In fact, Time magazine dismissed the significance of whether Fortas violated the law, asserting that it “misse[d] the point” because Fortas’s actions gave rise to “a question about the appearance of virtue on the court.”⁴⁵

The ABA censured Justice Fortas deeming his conduct “clearly contrary to the Canons of Judicial Ethics.”⁴⁶ The ABA opinion included reference to eight canons, but  emphatically “cited Canon Four’s command that a judge’s official conduct should be free from impropriety and the appearance of impropriety.”⁴⁷

Justice Fortas resigned from the US Supreme Court on May 16,1969.⁴⁸ The Fortas scandal motivated the ABA to establish another committee, chaired by retiring California Chief Justice

Roger Traynor whose charge was to evaluate and strengthen the Canons.⁴⁹ The Committee reduced the 1924 Canons to seven Canons that included the substance but eliminated much of the original aspirational language.⁵⁰

The Committee focused on the importance of judicial appearances to create the 1972 Model Code of Judicial Ethics.⁵¹ The title of Canon 2 read: “A Judge Should Avoid Impropriety and the Appearance of Impropriety in all His Activities.”⁵² The appearance of impropriety, no longer simply aspirational, became a mandatory standard of judicial conduct.⁵³

The 1990 Model Code

Although not driven by a judicial controversy, the ABA revised the Judicial Canons again in 1990. The appearance of impropriety standard remained intact “to caution judges to avoid certain prospective conduct even if the conduct only appears suspect, and to proscribe any act that is harmful even if it is not specifically prohibited in the Code.”⁵⁴

The ABA Commission on the Twenty-first Century recommended a review of the 1990 Model Code of Judicial Ethics and specifically targeted the role of judicial appearances and the evaluation of the fairness of the vague standard of the appearance of impropriety as a rule of discipline.⁵⁵

After over three years of debate during which the appearance of impropriety was moved to Canon 1 and initially appeared to be relegated to an aspirational guideline, it was eventually reinstated as a rule of discipline.⁵⁶

Thus, more than a century after Judge Landis ignited the appearance of impropriety fire, it continues to burn brightly as the standard by which judges may be held accountable. Although subject to constitutional debate based upon due process concerns,⁵⁷ the appearance of impropriety continues to be applied to judicial conduct.

Conclusion

The winding and interconnected tale of baseball and the judicial canons reveals that the connections, coincidences, and repercussions of various historical events and moments in time are often both unpredictable and long lasting. The upset over a judge becoming the first baseball commissioner and the irony of the application of the appearance of impropriety first to baseball players and then to the judiciary remains significant.

Perhaps the poignant postscript to this story resides in the 2020 decision to remove Kenesaw Mountain Landis’s name from baseball’s MVP plaques due to his alleged lack of support for the integration of baseball.⁵⁸ The appearance of impropriety or actual impropriety then, now, or always?

No doubt, time will continue to judge both the federal district court judge and the first baseball commissioner known as Kenesaw Mountain Landis. The analysis may evolve but Kenesaw Mountain Landis’s status as the first baseball commissioner and his impact on both the game and the judicial canons cannot be denied.

–Some said that baseball owners found Judge Kenesaw Mountain Landis on the federal bench, but Leo Durocher got it right when he said, “They got him right out of Dickens.” [Babe]Ruth put the fans back in the parks, but Landis made sure what they witnessed was honest. The Sultan and the Czar worked different sides of the street but between them, they saved the game.⁵⁹ –Dan Busby

¹ https://www.inspiringquotes.us/quotes/rd01_Oae97tQH

² Sigman, “Jurisprudence of Landis”, 282 (citing Spink, Twenty-Five Years of Baseball, 28).

³ “Oil Trust Fine Is $29,240,000; Judge Landis Imposes Maximum of $20,000 Each on 1,462 Counts,” New York Times (Aug. 4, 1907), https://www.nytimes.com/1907/08/04/archives/oil-trust-fine-is- 29240000-judge-landis-imposes-maximum-of-20000.html.

⁴  Sigman, “Jurisprudence of Landis,” 283 (citing Henderson, “The Most Interesting Man,” 245 (quoting the Chicago Examiner)).

⁵ Sigman, “Jurisprudence of Landis,” 278 (citations omitted).

⁶ Sigman, “Jurisprudence of Landis,” 279.

⁷ “Eight White Sox Players are Indicted on Charge of Fixing 1919 World Series; Cicotte Got $10,000 and Jackson $5,000,” New York Times (Sept. 29, 1920), 1, https://www.nytimes.com/1920/09/29/archives/eight-white-sox-players-are-indicted-on-charge-of-fixing- 1919-world.html.

⁸ Ibid.

⁹ Ibid.

¹⁰ J RANK, Code of Judicial Conduct: History of the Code (accessed Feb. 2020), https://law.jrank.org/pages/5327/Code-Judicial-Conduct-History-Code.html.

¹¹ Raymond J. McKoski, “Judicial Discipline and the Appearance of Impropriety: What the Public Sees is What the Judge Gets,” 94 Minnesota Law.Review. 1914, 1922 (citing I.E. Sanborn, “Major Operation on B.B. Fabric to Restore Game,” Chicago Daily Tribune., Dec. 8, 1920, 23.)

¹² Andrew Green, “The Judge Who Became Commissioner: Kenesaw Mountain Landis, the Judiciary & Baseball,” Judging in the American Legal System (May 7, 2009), 22 (citing Baseball: A Film by Ken Burns: Inning 3 – The Faith of Fifty Million People (PBS television broadcast Sept. 20, 1994) (referring to Landis as a “Federal judge with a reputation for willful independence equaled only by his flair for self- promotion . . .”)).

¹³ Sigman, “Jurisprudence of Landis,” 283 (citations omitted).

¹⁴ Sigman, “Jurisprudence of Landis,” 284 (citations omitted)

¹⁵ “Commissioner Kenesaw Landis Biography,” Baseball-Almanac (date accessed Feb. 1, 2019), https://www.baseball-almanac.com/articles/kenesaw_landis_biography.shtml.

¹⁶ Sigman, “Jurisprudence of Landis,” 278 (citations omitted).

¹⁷ “Kenesaw Landis,” National Baseball Hall of Fame (date accessed Feb. 1, 2019), https://baseballhall.org/hall-of-famers/landis-kenesaw.

¹⁸ “Code of Judicial Conduct: History of the Code,” J Rank (accessed Feb. 2020), https://law.jrank.org/pages/5327/Code-Judicial-Conduct-History-Code.html.

¹⁹ Green, “Judiciary & Baseball,” 22.

²⁰ Green, “Judiciary & Baseball,” 21-2 (citing John P. Mackenzie, The Appearance of Justice, 180 (1974), 181 (Landis’ actual salary was $42,500, as he deducted his judicial salary from that which the baseball owners were willing to pay); Spink, Twenty-Five Years of Baseball, 72).

²¹ McKoski, “Judicial Discipline,” 1923 (citations omitted).

²²  Green, “Judiciary & Baseball,” (citing Conduct of Judge Kenesaw Mountain Landis: Hearings Before the H. Comm. on the Judiciary, 66th Cong. 17 (1921), 15 (statement of Benjamin F. Welty. Welty also accused Organized Baseball of bribery in connection with both the Federal League antitrust suit and the Black Sox scandal.

²³ Green, “Judiciary & Baseball,” 22 (citing Conduct of Landis Hearings, 19 (statement of Benjamin F. Welty)).

²⁴ Sigman, “Jurisprudence of Landis,” 284 note 47 (citations omitted).

²⁵ Green, “Judiciary & Baseball,” 23 (citing Conduct of Landis Hearings, 4-5 (statement of Benjamin F. Welty)).

²⁶ Green, “Judiciary & Baseball,” 23 (citing Conduct of Landis Hearings, 18 (statement of Benjamin F. Welty)).

²⁷ Green, “Judiciary & Baseball,” 23 (citing Conduct of Landis Hearings, 18 (statement of Benjamin F. Welty)).

²⁸ Green, “Judiciary & Baseball,” 23-4 (citing Andrew J. Lievense & Avern Cohn, “The Federal Judiciary and the ABA Model Code: The Parting of the Ways,” 28 Justice System Journal 271, 273 (2007).

²⁹ McKoski, “Judicial Discipline,” 1923 (citing Report of the Forty-Fourth Annual Meeting of the A.B.A. 61–68 (1921); “Bar Meeting Votes Censure of Landis,” New York Times, Sept. 2, 1921, 1 (reproducing the ABA resolution censuring Judge Landis).

³⁰ Green, “Judiciary & Baseball,” 24 (citing “Bar Meeting Votes Censure of Landis,” New York Times (Sept. 2, 1921), 1, http://query.nytimes.com/gst/abstract.html?res=9504E5DA1439E133A25751C0A96F9C946095D6CF).

³¹ Sigman, “Jurisprudence of Landis,” 284 (citations omitted).

³² “Code of Judicial Conduct: History of the Code,” J Rank (accessed Feb. 2020), https://law.jrank.org/pages/5327/Code-Judicial-Conduct-History-Code.html.

³³ Cohn & Lievense, Judiciary and ABA Model Code, 273.

³⁴ Cohn & Lievense, Judiciary and ABA Model Code, 273.

³⁵ A.B.A., About the Commission (accessed Apr. 2020), https://www.americanbar.org/groups/professional_responsibility/policy/judicial_code_revision_project/background/. 73 “Code of Judicial Conduct: History of the Code,” J Rank (accessed Feb. 2020), https://law.jrank.org/pages/5327/Code-Judicial-Conduct-History-Code.html.

³⁶ 74 A.B.A. Reports, 1924:762.

³⁷ 76 McKoski, “Judicial Discipline,” 1926 (citing In re Harriss, 4 N.E.2d 387, 388 (Ill. 1936)).

³⁸ McKoski, “Judicial Discipline,” 1920-21 (citing In re Harriss, 4 N.E.2d 387, 388 (Ill. 1936) (“[The 1924 Canons] were all succinctly summed up by St. Paul centuries ago when he advised the Thessalonians to abstain from all appearance of evil.); Eastham v. Holt, 27 S.E. 883, 894 (W. Va. 1897); see also State ex rel. Attorney Gen. v. Lazarus, 1 So. 361, 376 (La. 1887) (“All those who minister in the temple of justice . . . should be above reproach and suspicion. None should serve at its altar whose conduct is at variance with his obligations.”).

³⁹ 75 Cohn & Lievense, Judiciary and ABA Model Code, 274 (citing Kinnear, 1969; Brooks Bros, 1945, 17).

⁴⁰ McKoski, “Judicial Discipline,” 1926 (citation omitted).

⁴¹ McKoski, “Judicial Discipline,” 1927 (citing Jake Garn & Lincoln C. Oliphant, “Disqualification of Federal Judges Under 28 U.S.C. § 455(a): Some Observations On and Objections to an Attempt by the United States Department of Justice to Disqualify a Judge on the Basis of His Religion and Church Position,” 4 Harvard Journal of Law & Public Policy 1, 22 (1981)).

⁴² McKoski, “Judicial Discipline,” 1927 (citation omitted).

⁴³ McKoski, “Judicial Discipline,” 1927 (citing John Anthony Maltese, “The Selling of Clement Haynsworth: Politics and the Confirmation of Supreme Court Justices,” 72 Judicature 338, 340 (1989) (“Fortas had broken no law . . ..”); “The Fortas Affair,” Time, May 16, 1969, 20 (“Although Fortas had not broken any law, he had clearly been guilty of a gross indiscretion.”)).

⁴⁴Ibid

⁴⁵ McKoski, “Judicial Discipline,” 1927 (citing “Judgment on a Justice,” Time, May 23, 1969, 23 (quoting Stanford law professor Gerald Gunther)).

⁴⁶ McKoski, “Judicial Discipline,” 1927-28 (citing 4 The Justices of the United States Supreme Court: Their Lives and Major Opinions 1463 (Leon Friedman & Fred L. Israel eds., 1997); see also Glen Elsasser, “Fortas Violated Judicial Ethics, ABA Rules,” Chicago Tribune, May 21, 1969, 28 (describing the informal opinion issued by the ABA Committee on Professional Ethics finding that Fortas violated the 1924 Canons)).

⁴⁷ McKoski, “Judicial Discipline,” 1928 (citing 4 The Justices of the United States Supreme Court: Their Lives and Major Opinions 1463-64 (Leon Friedman & Fred L. Israel eds., 1997)).

⁴⁸ McKoski, “Judicial Discipline,” 1928 (citing “Mr. Fortas Resigns,” New York Times, May 16, 1969, 46).

⁴⁹ McKoski, “Judicial Discipline,” 1928 (citing Jake Garn & Lincoln C. Oliphant, “Disqualification of Federal Judges Under 28 U.S.C. § 455(a): Some Observations On and Objections to an Attempt by the United States Department of Justice to Disqualify a Judge on the Basis of His Religion and Church Position,” 4 Harvard Journal of Law & Public Policy 1, 23 (1981) (noting that the ABA’s appointment of a special committee to revise the Canons of Judicial Ethics was “[m]otivated in part by the Fortas scandal”)).

⁵⁰ A.B.A., “About the Commission,” A.B.A., (accessed Apr. 2020), https://www.americanbar.org/groups/professional_responsibility/policy/judicial_code_revision_project/background/.

⁵¹ McKoski, “Judicial Discipline,” 1928 (citing CODE OF JUDICIAL CONDUCT Canon 2 (1972) (The Code of Judicial Conduct was adopted by the ABA House of Delegates on August 16, 1972.)).

⁵² McKoski, “Judicial Discipline,” 1928 (citing CODE OF JUDICIAL CONDUCT Canon 2 (1972)).

⁵³ McKoski, “Judicial Discipline,” 1928 (citing Charles Gardner Geyh, “Roscoe Pound and the Future of the Good Government Movement,” 48 South Texas Law Review 871, 879 (2007) (“The 1972 Code thus effectively strengthened the commitment to regulating appearances as a means to promote public confidence in the courts by making its rules enforceable.”)).

⁵⁴ McKoski, “Judicial Discipline,” 1930-31 (citing Lisa L. Milord, The Development of the ABA Judicial Code 13 (1992)).

⁵⁵ McKoski, “Judicial Discipline,” 1932 (citing Siobhan Morrissey, Revising the Rules: Update of the Judicial Conduct Code Will Address the Changing Justice System, 90 American Bar Association Journal, Feb. 2004, 62).

⁵⁶ See McKoski, “Judicial Discipline,” 1934-1935 (citations omitted). [“The demotion of the appearance standard from an enforceable rule to a guiding principle created a small firestorm… In the face of united criticism, the Joint Commission relented and supported an amendment introduced on the floor of the ABA House of Delegates reincorporating the appearance of impropriety prohibition into disciplinary Rule 1.2… Thus, disciplinary Rule 1.2 of the Model Code of Judicial Conduct adopted by the ABA in February 2007 provides: ‘A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.’”]

⁵⁷ A deep dive into the constitutional debate over the allegations of vagueness and resulting due process concerns while intellectually compelling and ongoing is beyond the scope of this article.

⁵⁸ Matt Kelly, “Landis’ Name to be Removed from MVP Trophies,” MLB.com (October 2, 2020) https://www.mlb.com/news/kenesaw-mountain-landis-name-removed-mvp-trophies

⁵⁹  Dan Busby, Kenesaw Mountain Landis, Society for American Baseball Research, excerpted from in “Whales, Terriers, and Terrapins: The Federal League 1914-15” (SABR, 2020), edited by Steve West and Bill Nowlin available at https://sabr.org/bioproj/person/kenesaw-landis/.