Philip Stevens

Spring 2015

Upper Level Writing Requirement

Off-Bench Commentaries of Federal Judges: A Case Study

I. Introduction

In late 18th into the 19th centuries American federal judges occupied ambivalent

positions in an ambiguous institution.1 United States courts lacked their current tools of political

influence.2 By 1860, judges developed traditions of commentaries to advocate constitutional

principles and develop modern judicial roles.3 At the end of the 19th century and into the early

20th century, judges massively expanded their speeches and writings.4 As the economy and

nationalism grew, so did judicial discourse through justices such as Justice Stephen Field’s

defense of laissez-faire, and Justice David Brewer’s declaring the problem of American

government was “to secure the rights of the individual against the assaults of the majority.”5 By

the mid-1900s judges were producing continuous commentaries, speaking boldly and frankly

about the judicial process.6 One of the most prolific was Judge Felix Frankfurter, who spoke

regularly about his fellow justices.7

Today, a federal judge’s life is divided into time on and off the bench. While on the

bench, judges enjoy a certain amount of freedom regarding their decision-making, sentencings,

and in-court procedures. Much of this latitude is regulated by various rules set by Congress,

1 Alan F. Westin, Out of Court Commentary by United States Supreme Court Justices, 1790-1962: Of Free Speech

and Judicial Lockjaw, 62 COLUM. L. REV. 633, 637 2 Id. 3 Id. 4 Id. at 651. 5 Id. at 652. 6 Id. at 656. 7 Id. at 657.

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state legislatures, or individual courts themselves. In particular for federal judges, the rules and

policies are promulgated by Congress and the Judicial Conference’s Committee on Rules of

Practice and Procedure and its five advisory rules committees.8 In the alternative, state courts

defer to individual state supreme courts as administrative and rules-promulgating bodies and to

legislating bodies, many modeling their rules off the federal counterpart. Further, logistical rules

such as formatting for documents or scheduling are left for individual courts.9 Even so, an

individual judge may still have further control by dictating particular rules for pleadings and

trials in their courts.10

Justice Rehnquist once noted that judges have to “keep anchors to the outside world.”11

A judge’s life, is guided by a unique code. While most court personnel may enjoy a certain level

of personal freedom, judges’ speech and conduct is further constrained and regulated. While off-

bench, the Code of Judicial Conduct guides extrajudicial behavior, encouraging observation of

high standards of conduct and avoiding impropriety in in all activities.12 These standards suggest

limits on a judge’s speech, an otherwise constitutionally guaranteed right.13

This piece discusses the unique limitations of federal judicial speech in the public sphere,

whether public functions or writings. Even outside of her judicial duties, a judge’s conduct is

important. . Judges, as arbiters of law, have experiences and insights that encourage numerous

opportunities to speak at conferences, government hearings, and other functions, not limited to

the academic world. A judge’s perspective and viewpoints are valuable insights into the judicial

8 Rules Enabling Act, 28 U.S.C. §§ 2071(a), 2071(c) (2015). 9 Id. at § 2071(c) 10 Id. 11 Jeffery M. Shaman, Off-The-Bench Conduct, 57 PA. B. ASS’N Q. 24, 24 (1986). 12 CODE OF CONDUCT FOR UNTIED STATES JUDGES Canon 2 (2014). 13 U.S. Const. amend I.

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system. They occupy a leadership role in public service. Judges, thus are accountable to the

public to maintain the independence and integrity of the judiciary, and avoid impropriety.14

This essay explores the off-bench commentaries, defined here as something of a term of art, of

modern federal judges, and applies the code of conduct to individual cases. First, it discusses

what types of speech fall under the definition of “commentary;” what is included and what is

excluded. Second, it delves into what canons of the code and rules beyond the code provide

guidance as to these commentaries. What have these rules come to mean as applied to judges’

off-bench lives? Third, the paper explores five relatively recent instances of these commentaries.

Which have contributed to and worked to develop public knowledge? What others threatened

impendent judicial decision-making? Finally, this piece explores how new types of digital

communication open new doors for a judge’s extrajudicial speech. How can these avenues

change the way the public views the law and the judiciary?

While this discussion is limited to federal district court and courts of appeals judges,

Supreme Court justices also may conduct themselves in ways that may be inconsistent with the

code’s admonitions, even though, by its terms, the code is directed at judges of the so-called

lower federal courts.15 However, justices are not subject to the same disciplinary mechanics as

their lower court colleagues. Even so, justices are still the objects of attention from the press and

others alleging conflicts from their off-bench conduct, and may still conduct themselves in ways

prejudicial of the courts. Due to the unique position held by Supreme Court justices, discussions

of applicable extrajudicial commentary is best reserved for a separate discussion.16

14 See CODE OF CONDUCT FOR UNTIED STATES JUDGES Canons 1, 2 (2014). 15 See Russell Wheeler, A Primer on Regulating Federal Judicial Ethics at 56 Ariz. L.Rev. 479, 490-91 (2014)

(Detailing numerous instances of questionable ethical conduct by Supreme Court justices, such as serving as paid

faculty at a law school where the dean was a Supreme Court litigator, attending a dinner funded by an attorney of a

party of pending litigation, and accepting gifts from a donor interested in the outcome of a pending case.). 16 But see infra note 116.

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II. Scope of Discussion

Judges take part in a large variety of public, off-bench events. These include speaking

events at law schools, government associations, and groups. They write for journals and

personal or group research projects. Judges may discuss the state of the judiciary, campaign for

their elections when required, or report to a variety of judicial conferences. For the purposes of

the discussion at-hand, these appearances are limited to “commentaries.” A commentary is

defined as an extrajudicial speaking or writing that could call a federal judge’s independent

decision-making into question.17 Examples may include public speeches, blogs, or publications.

Commentaries also include personal conduct; what judges do on their own time when not

engaged in judicial activity.18 Law school and conference speeches for educational purposes are

also mostly excluded from this discussion, although under certain circumstances, they could also

may still call the judge’s independent decision-making into question.19

A. A Short Note on Judicial Elections

This paper is principally about federal judges, but it is worth noting briefly that judicial

elections stir a classic debate over judicial independence and accountability.20 How can a judge

hear a case, and decide solely based on application of the law to the facts while simultaneously

facing partisan elections? Despite regular protest, most states select judges and justices through

partisan or non-partisan or retention elections.21 In 2012, nine states selected state supreme court

justices through partisan elections.22 An estimated 89 percent of all justices face election at some

17 Shaman, supra note 11, at 24. 18 Charles Gardner Geyh, James J. Alfini, Steven Lubet & Jeffery M. Shaman, JUDICIAL CONDUCT AND LEGAL

ETHICS 10-2 (5th ed. 2013) [hereinafter Geyh, JUDICIAL CONDUCT]. 19 See Infra at 5. But see infra at 10. 20 See G. Alan Tarr, Without Fear or Favor: Judicial Independence and Judicial Accountability in the States 70,

(Keith J. Bybee ed., Stanford University Press 2012). 21 Id. at 69 (Since 1994, no state has adopted merit selection. However, no state with merit selection has yet

replaced it). 22 Id. at 70.

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point during their time on the bench.23 However, for the purposes of this discussion, election

speeches and campaigning are not considered to be commentaries. Election and campaign

speech is tarnished with the primary motive of job retention, a factor not necessarily found in

public commentaries of this discussion. Also, elections receive special considerations and

jurisprudence not always afforded to normal extrajudicial conduct.24 Due to the unique nature of

election speeches, discussion of the ethics and its limits are best reserved for a separate

discussion.

B. A Short Note on Educational Speeches

Judges commonly speak at law school events, state bar conferences, and other

educational or judicial events. Rarely are the ethics of these speeches debated.25 Even Supreme

Court justices have been well known lecturers. Further, Canon 4B of the Code of conduct

provides that “a judge may engage in extrajudicial activities, including law-related pursuits and

civic, charitable, educational, religious, social, financial, fiduciary, and governmental activities,

and may speak, write, lecture, and teach on both law-related and non-legal subjects.”26 While,

certainly possible and encountered in the first case study, federal judges teaching or speaking

generally has posed few problems in judicial ethics, and is thus not the central issue in this

discussion of off-bench commentaries.27

III. The Code of Conduct

The Code of Conduct for United States Judges was adopted by the Judicial Conference of

the United States in 1973 and amended since then.28 It prescribes ethical norms for federal judges

23 Id. 24 See Republican Party v. White, 536 U.S. 765 (2002) (Holding restriction of judicial campaign speech

unconstitutional on First Amendment grounds). 25 See Geyh, JUDICIAL CONDUCT at at 9-2. 26 CODE OF CONDUCT FOR UNTIED STATES JUDGES Canon 4 (2014). 27 See Geyh, JUDICIAL CONDUCT at 9-2. But see infra at 10. 28 United States v. Microsoft Corp., 253 F.3d 34, 47 (D.C.Cir. 2001)

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as a means to preserve the actual and apparent integrity of the federal judiciary.29 The code

applies to the conduct of federal judges. Before delving into the canons themselves, it is

important however to reveal why extrajudicial behavior necessitates regulation all. Shouldn’t a

judge be evaluated based off his in-court performance? Judges relinquish a certain amount of

their constitutional freedom of speech upon taking office.30 First, judges need to primarily avoid

the appearance of partiality or favoritism.31 The canons also need to prevent disrepute for the

bench so as to maintain confidence in the independence of the judiciary.32 Further, the code

works to avoid unfair exploitation of the judicial office.33 Finally, restrictions ensure judges will

not be distracted from outside influences.34 Regulating private conduct ultimately ensures a

judge’s independence and accountability while on the bench.

The code however, is not a binding set of rules but instead “rules of reason,” guidelines to

which judges should aspire to comply.35 Complaints against federal judges are filed under U.S.

Code chapter 16 Title 28 against judges a complainant alleges “engaged in conduct prejudicial to

the effective and expeditious administration of the business of the courts.”36 While complaints

and courts cite to the code, because some actions inconsistent with the code may in fact

constitute improper conduct under the statutory definition, as interpreted by the Judicial

Conference and judicial councils, the grounds of a complaint and any binding sanctions must be

set in statute. 37 Judges may in certain circumstances violate the code, while still evading formal

29 Id. 30 Shaman, supra note 11. 31 Id. 32 Id. 33 Id. 34 Id. 35 CODE OF CONDUCT FOR UNTIED STATES JUDGES Canon 1 cmt. (2014) 36 28 U.S.C. § 351(a) (2015). 37 Infra 12-13.

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statutory disciplinary procedures.38 The code thus, while important, is ultimately only a guiding

and influential set of rules.

There is however a danger of overregulation. The Code of Conduct itself states that

“complete separation of a judge from extrajudicial activities is neither possible nor wise.” A

judge is in a “unique position to contribute to the law” and “is encouraged to do so.”39 The

canons resist overregulation, and promote a judge’s interaction outside of the courtroom. Judges

should publish and speak from their unique knowledge. It is a waste to confine important legal

minds to only the courtroom.

A. The Canons

Several canons of the code apply to a judge’s extrajudicial conduct, and to off-the-bench

commentaries.40 First, Canon 1 requires a judge to “maintain and enforce high standards of

conduct and should personally observe those standards, so that the integrity and independence of

the judiciary may be preserved.”41 The commentary further explains the rules are “rules of

reason” not meant to impinge on essential independence of judges.42

Canon 2A is also applicable. It requires judges “respect and comply with the law and

should act at all times in a manner that promotes public confidence in the integrity and

impartiality of the judiciary.43” The official commentary to Canon 2A sets out a test of

38 See In re Charges of Judicial Misconduct (Calabresi), 404 F.3d 688 (Judicial Council of the 2nd Circuit 2005)

(discussing Federal Judge Guido Calabresi comparing President Bush's election in 2000 to the rise of Adolf Hitler

and Benito Mussolini did violate Canon 5 of the Code, but Judge Calabresi’s apology, the chief judge’s public

admonition, and council’s concurrence were sufficient sanction and corrective actions.”) 39 CODE OF CONDUCT FOR UNTIED STATES JUDGES Canon 4 (2014). 40 The American Bar Association (ABA) Model Rules of Professional Conduct may apply as well, setting out a

more thorough standard of behavior. 41 CODE OF CONDUCT FOR UNTIED STATES JUDGES Canon 1 (2014). 42 Id. at Canon 1 cmt. (2014). See also Id. (“Not every violation of the Code should lead to disciplinary action.

Whether disciplinary action is appropriate, and the degree of discipline, should be determined through a reasonable

application of the text and should depend on such factors as the seriousness of the improper activity, the intent of the

judge, whether there is a pattern of improper activity, and the effect of the improper activity on others or on the

judicial system.”) 43 Id. at Canon 2A (2014).

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whether a judge has an appearance of impropriety. “[W]hen reasonable minds, with

knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would

conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a

judge is impaired.44” Further, Canon 2B dictates a judge “should not allow family, social,

political, financial, or other relationships to influence judicial conduct or judgment.45” It also

says a “judge should neither lend the prestige of the judicial office to advance the private

interests of the judge or others nor convey or permit others to convey the impression that they

are in a special position to influence the judge.46”

Judges are also restricted in their speech over pending cases as well. Canon 3A(6)

dictates “a judge should not make public comment on the merits of a matter pending or

impending in any court,” qualified by allowing “public statements made in the course of the

judge’s official duties, to explanations of court procedures, or to scholarly presentations made

for purposes of legal education.” Finally, Canon 4 concerns in particular, a judge’s

extrajudicial speech. Canon 4A(1) allows a judge to “speak, write, lecture, teach, and

participate in other activities concerning the law, the legal system, and the administration of

justice.”

IV. The Commentaries

The following is an analysis and discussion of several publicized instances of judges’ off-

bench commentary. The first two cases falls outside of the scope of permitted judicial speech,

and should have been self-censured by the judge. The next two examples are legitimate, albeit

controversial, exercises of free speech, contributing to public knowledge. The final example

44 Id. at Canon 2A cmt. (2014). 45 Id. at Canon 2A (2014). 46 Id. at Canon 2B.

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explores the case of a state judge case, and examines the similarities to the cases of federal

judges.

A. Judge Jackson and the Press

On June 7, 2000, Judge Thomas Penfield Jackson of the United States District Court for

the District of Columbia handed down his ruling following the trial of U.S. v. Microsoft.47 He

found Microsoft liable for violations under the Sherman Act.48 However, most remarkable for

the purposes at hand, is not the outcome of the trial, but the judge’s conduct with the press during

and after the trial proceedings. On appeal, the United States Court of Appeals for the District of

Columbia Circuit would call his actions “deliberate, repeated, egregious and flagrant.”49

Immediately after entering his judgment, Judge Jackson gave several interviews to member of

the press, including the London Times, and the Wall Street Journal, as well as speeches at a

seminar at Dartmouth College after the decision’s release.50 Jackson said of then-Microsoft-

chairman Bill Gates; his “testimony is inherently without credibility” , and he “has a Napoleonic

concept of himself and his company, an arrogance that derives from power and unalloyed

success with no leavening hard experiences, no reverses.”51 He compared the company’s

executives to drug traffickers who “never figured out that they shouldn’t be saying certain things

on the phone.”52 In interviews both during and after the trial, The New Yorker reported him

denouncing Microsoft’s protestations of innocence comparing them to the protestations of

innocence from the gang members of the D.C.-area Newton Street Crew, from one of his past

47 Microsoft Corp., 253 F.3d 34. 48 Id. at 45. 49 Id. 50 Id. At 45; John Schwartz, U.S. vs. Microsoft: The Judge; A Judge Overturned by an Appearance of Bias, N.Y.

TIMES, June 29, 2001, http://www.nytimes.com/2001/06/29/business/us-vs-microsoft-the-judge-a-judge-overturned-

by-an-appearance-of-bias.html (Discussing how some of the interviews occurred as early as September 1999,

several months before his verdict). 51 Schwartz, supra note 50. 52 Id.

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trials.53 Beyond simply divulging a personal distaste for Microsoft officers, he also revealed his

opinion on a remedy for Microsoft’s anti-trust violations in the months leading up to the verdict.

He told the New York Times he was not aware of “any case authority that says I have to give

them any due process at all. The case is over. They lost.”54

Jackson’s off-bench speech degraded confidence in the impartiality and integrity of the

judiciary. At first glance, Jackson’s comments after his released decision, may seem proper.

Canon 3A(6) prohibits only public comment on “merits of a matter pending or impending in any

court.” The parties’ case was concluded and the verdict made public. Here however, the key

term is “any.” Microsoft filed an immediate appeal following the district court’s verdict. Thus,

Jackson’s comments substantively concerned the merits, not of a trial case, but of a court of

appeals case. The commentary to Canon 3A(6) elucidates further on the rule’s intended meaning

and application: “the admonition against public comment about the merits of a pending or

impending matter continues until the appellate process is complete. If the public comment

involves a case from the judge’s own court, the judge should take particular care so that the

comment does not denigrate confidence in the judiciary’s integrity and impartiality, which would

violate Canon 2A.”55 Clearly, Jackson’s comments concerning the details of the case violated

the canons.56 Also, as the case was from “the judge’s own court” his failure to take care of his

53 See generally Microsoft Corp., 253 F.3d at 47 (“In that case, the three victims had had their heads bound with duct

tape before they were riddled with bullets from semi-automatic weapons.On the day of the sentencing, the gang

members maintained that they had done nothing wrong, saying that the whole case was a conspiracy by the white

power structure to destroy them,Jackson recalled. I am now under no illusions that miscreants will realize that

other parts of society will view them that way.” (quoting THE NEW YORKER)). 54 Id. 55 CODE OF CONDUCT FOR UNTIED STATES JUDGES Canon 3A(6) cmt. (2014). See also CODE OF CONDUCT FOR

UNTIED STATES JUDGES Canon 2A (2014) (“A judge should respect and comply with the law and should act at all

times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”). 56 I question the binding nature or applicability of the Official Commentary to the Codes of Conduct for United

States Judges. It would seem logical that if the drafters wanted to include the term “appellate process” in addition to

“any court” to Canon 3A(6) they would have. Even so, use of the latter term necessarily makes the former

redundant. It seems, instead of adding to the canon, this comment seems to particularly emphasize the extra-

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comments was particularly egregious. Discussing the merits caused the parties to lose

confidence that Jackson decided the case impartially and based on the facts presented.

In particular, Jackson’s illustrative descriptions of Microsoft officers as well as his

comparison to previous criminal defendants exposed a clear and unambiguous bias. It affected

the case in two substantial ways. First, Jackson degraded trust that he decided the case

impartially by stating opening he found Microsoft officers’ testimonies to be without credibility

based on his personal views of the company’s “unalloyed success.”57 The judicial role requires a

judge to preside over a case without interference from his personal feelings for or against any of

the parties present. Jackson, from his comments to the public, quashed that trust by presiding

over a case in which he appeared to let his resentment for a party dictate his decisions. Second,

his bias denied the parties a just and fair outcome. While he may have maintained an ability to

set aside personal feelings over the parties; his comments indicated otherwise. The rules are

concerned with this appearance to the public, even if the judge maintains impartiality. Even so,

disregarding the credibility of testimony, based solely on which party is originates demonstrated

Jackson’s refusal to objectively consider the evidence. Without a fair and impartial review of all

the facts meant he could not have reached a fair outcome.

The court of appeals’ analytical approach on appeal regarding Jackson’s conduct was

appropriate, albeit not surprising. The court distinguished his speech as not “purely procedural

matters” which are otherwise permissible under a narrow exception to Canon 3A.58 The

substantive nature of his factual and legal matters went to the heart of the case, and his opinion

egregious nature of exposing the merits and decision-making of one’s own case currently going through an appeals

process. 57 Schwartz, supra note 50. 58 Microsoft Corp., 253 F.3d at 48. See CODE OF CONDUCT FOR UNTIED STATES JUDGES Canon 3A(6) (Noting the

prohibition on public comment on the merits does not extend to public statements made in the course of the judge’s

official duties, to explanations of court procedures, or to scholarly presentations made for purposes of legal

education.)

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on witness credibility, legal theory validity, and defendant culpability all dealt the merits of the

case.59 Further, the court found he violated Canon 3A(4), which ensures those who have “legal

interest[s] in a proceeding . . . the right to be heard” and otherwise banning ex parte

communications.60 By one account, Jackson had spent more than ten hours for a taped interview,

causing the court to assume these interviews were in essence, conversations.61 The court

discussed how neither of the parties could challenge the information, due to his embargo on the

interviews.62 It concluded his public comments “were not only improper, but also would lead a

reasonable, informed observer to question the District Judge’s impartiality,” and retroactively

disqualified him as to the imposition of the remedy.63

Nearly six years later, Jackson, no longer on the bench, defended the outcome of his

original decision, stating “[the] Microsoft persona I had been shown throughout the trial was one

of militant defiance, unapologetic for its past behavior and determined to continue as before.”64

He defended his extrajudicial actions and the outcome of his trial case, even though it was

remanded by the appeals court and later settled. A question continues to circle however: why

discuss a pending case, knowing it violated judicial canons? He may have believed his

comments to be ultimately permissible, or alternatively believed that the close-door interviews

would be confidential until the case truly completed. The Circuit Court was right to disqualify

59 Microsoft Corp., 253 F.3d at 48. 60 Id. 61 Id. 62 Id. at 45. 63 Id. at 50-51. 64 Anne Broache, Former judge defends his bid to break up Microsoft, CNET NEWS (June 21, 2005 8:15 AM PDT),

http://news.cnet.com/Former-judge-defends-his-bid-to-break-up-Microsoft/2100-1014_3-5755593.html. See

generally The Thomas Penfield Jackson Award for Civic Responsibility and Democratic Citizenship 2015, ST.

MARY’S COLLEGE OF MARYLAND CENTER FOR THE STUDY OF DEMOCRACY (January 28, 2015), http://www.smcm.

edu/democracy/2015/01/thomas-penfield-jackson-award-civic-responsibility-democratic-citizenship-2015/ (Judge

Jackson served on the St. Mary’s College Board of Trustees in 2001 and 2002. He passed away in 2013. In his

honor, The St. Mary’s Center for the Study of Democracy set up The Thomas Penfield Jackson Award for Civic

Responsibility and Democratic Citizenship, an annual award honoring “his lifetime of service and his commitment

to” the Center.).

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him retroactively. These circumstances were extreme and did not contribute to either the public’s

knowledge, but instead eroded confidence in the independence of the federal judiciary.65

B. Judge Shaw and the Congressman

In 2006, Representative for Missouri’s First congressional district, William Lacy Clay Jr.

was running for his fourth consecutive term.66 On May 1st, Clay attended a naturalization

ceremony as part of his election campaign events.67 A news story in St. Louis’s most prominent

newspaper reported that District Judge Charles A. Shaw of the United States District Court for

the Eastern District of Missouri, commented to the 314 citizenship candidates saying Clay was a

“a tireless defender of voting rights for all citizens.”68 Clay then urged the soon-to-be citizens to

register to vote.69 Upon return for the swearing in, Judge Shaw said—according to the news

account, which Judge Shaw later disputed-- “for Congressman Clay to continue doing his good

work, he needs your vote, OK?”, then referring to the registration table just outside the

auditorium.70

Canon 5 of the code of conduct places a general prohibition on a judge’s engaging in

political activity. Federal judges, are life-tenured and un-elected, and thus meant to be free from

political and campaigning pressures. Specifically, Canon 5A prohibits “speeches for a political

organization or candidate, or publicly endorse or oppose a candidate for public office.”71 The

65 See also In re Hayes, 541 So. 2d 105 (Fla. 1989) (reprimanding a trial judge who gave a reporter his impressions

of the attorneys, witnesses, and jury in the midst of a murder trial) 66 U.S. House of Representatives / Missouri 01 / County Results, CNN.COM (2006), http://www.cnn.com/

ELECTION/2006/pages/results/states/MO/H/01/county.000.html. 67 Tim O’Neil, Judge Urges New Citizens to Vote for Rep. Clay Code of Conduct Bars Federal Judges from Making

Endorsements, ST. LOUIS POST-DISPATCH, May 1, 2006, at B2. 68 Id. 69 Id. 70 Id. 71 CODE OF CONDUCT FOR UNTIED STATES JUDGES Canon 5A (2014). See also Id. (“The term “political

organization” refers to a political party, a group affiliated with a political party or candidate for public office, or an

entity whose principal purpose is to advocate for or against political candidates or parties in connection with

elections for public office.”).

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Court of Appeals for the Eight Circuit, which includes Missouri resides, years later upheld the

constitutionality of the ban on public endorsement.72 In upholding a similar Minnesota code

provision, it explained:

“[w]hen a judge or judicial candidate endorses another candidate, it

creates a risk of partiality toward the endorses party and his or her

supporters, as well as a risk of partiality against other candidates . .

. [E]ven if a particular endorsement does not serve to create an actual

bias toward or against a particular party, the act of endorsement

itself undermines the judiciary’s appearance of impartiality because

the public may perceive the judge to be beholden to political

interests.”73

A federal judge is to be impartial both in actuality and in appearance. Paramount, as explained

by the court, is the public’s perception of the judge.

Judge Shaw’s comments, while short of direction promotion, were an endorsement of a

candidate for public office. First, telling over 300 soon-to-be citizens that a particular political

candidate “needs your vote, OK?” certainly undermined his impartiality. New citizens, many of

whom may be non-native English speakers, and are new to American culture and mannerisms,

quite possibly interpreted the federal judge’s request as a slight-of-hand demand. Many

countries do not enjoy the free elections, separated branches of government, or ethical rules

found in the United States. From a new citizen and voter’s perspective, many of whom were

likely present, a judge is not only influential but a figure of authority. Few groups are less

72 Wersal v. Sexton, 674 F.3d 1010 (8th Cir. 2012). 73 Id. at 1025.

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familiar with the unique freedoms and transparency American government customs. Many may

have also emigrated from locations where Shaw’s subtle language would not have meant advice

by a government official but instead direct coercion. While Shaw was likely not speaking for

devious purposes, the valuable appearance of impartiality was compromised on an

impressionable group of soon-to-be voters.74

He preceded his endorsement by emphasizing Rep. Clay’s record of tireless “defen[se] of

voting rights for all citizens,” giving greater weight to his ultimate endorsement. While, a

solitary statement of “he needs your vote, OK?” may be passed-over, the same statement

qualified with history of the candidate’s positive legislative record demonstrates more than mere

mistake. As one would at a campaign event, he in essence laid out a simple case why the over-

300 new voters should vote for Clay by supporting a conclusion with facts of record. Also in

doing so, he advocated not voting for another candidate. Therefore, not only was there a risk of

partiality towards Clay but also of partiality against other candidates, an evil expressly forbidden

by his appellate court75

A complaint was filed against Judge Shaw under the Judicial Misconduct Act referred to

above. The Chief Judge of the Court of Appeals for the Eight Circuit incorrectly designated

Judge Shaw’s comments as praise of Representative’ Clay’s public service. In reviewing the

complaint, the chief judge reviewed the printed news article as well as Judge Shaw’s response to

the complaint.76 Judge Shaw defended saying he emphasize the importance of voting.77 The

Chief Judge agreed, saying:

74 See Id. 75 See Id. 76 In re: Complaint of John Doe, Judicial Council of the Eighth Circuit, JCP No. 06-013, October 11, 2006 77 Id.

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“[T]he judge’s prepared remarks . . . did not go beyond praise of [the

congressman’s] prior public service, praise that would have been

appropriate in introducing any elected official. In this context, the

judge’s unrecorded impromptu remark following the congressman’s

speech—whether quoted more accurately by the journalist or by the

judge in his response—did not convert the judge’s conduct in

presiding over this important judicial ceremony into the public

endorsement of a candidate for public office [and] clearly did not

constitute the type of willful misconduct in office that is prejudicial

to the effective and expeditious administration of the business of the

courts”

From his opinion, the chief judge gave giving great weight to the perspective of Judge Shaw, and

less to the complainant. He trusted Shaw’s pre-prepared remarks over the press’ account without

the investigation that the misconduct statute requires and, it would seem, improperly found facts

that were reasonably in dispute. The Chief Judge failed to see the true break of judicial

accountability that took place. Even if Shaw did praise the congressman’s service, he violated

the canons when he went far and beyond mere praise. The chief judge failed to try to learn

whether in fact Shaw said that Clay needs your vote, and, in essence said, whether or not he said

made no different.. Then by following the statement with a clarifying “OK?” he seemed to

assure the listeners understand the weight of his request. While the actions were not egregious,

the Chief Judge misapplied Canon 5A to these facts.

Judge Shaw’s comments threatened the appearance of the independence of the federal

judiciary. While only slightly, he demonstrated to hundreds of soon-to-be voters, that federal

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judges can subtly endorse candidates they support, violating ethical canons in the process.

Unlike his claim to the Chief Judge, he in-fact failed to properly inform and educate those

present of the actual importance of voting: electing the candidate of one’s own choosing. He

missed an opportunity to educate new voters failing to contribute to public knowledge.

C. Judge Kopf and the Blog

Richard Kopf is a federal district judge, well known for his decision in Carhart v.

Ashcroft, where he found unconstitutional the Partial-Birth Abortion Ban Act of 2003.78

However, he is also known for his vocal, opinionated, and—at least for a sitting federal judge—

unorthodox personal blog: Hercules and the Umpire.79 In the aptly titled “The Who, the Why

and the Title of this Blog,” section of the blog, Kopf sets out his goals. He states “I am very

interested in the roles of judges and particularly the role of federal trial judges. So, that’s what I

will write about in this blog.” In further explaining the blog’s title, he iterates:

“I hope the title evokes an image of two poles. On the north, we

have the late great Ronald Dworkin’s all knowing judge,

Hercules. On the south, we have Chief Justice Roberts’ formulation

of the judge as umpire. I am interested in knowing (1) which pole

is the better and (2) whether there is a longitude and latitude between

those poles that locates the proper role of a federal trial judge.”80

Seemingly on cue for judge, he warns “I must not comment upon pending or impending matters.

I will strive hard to live up to that restriction.”81 In his “Copyright and stuff section” section, he

78 331 F. Supp. 2d 805 (D. Neb. 2004). See also Gonzales v. Carhart, 550 U.S. 124 (2007) (overturning the Eighth

Circuit’s affirmation of the United States District Court for the District of Nebraska decision). 79 Richard A. Kopf, HERCULES AND THE UMPIRE: THE ROLE OF THE FEDERAL TRIAL JUDGE, http://herculesand

theumpire.com/. 80 Kopf, The Who, the Why and the Title of this Blog, supra note 79. 81 Id.

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elucidates further that “nothing I write is intended to comment upon pending or impending

judicial matters regarding my day job as a federal trial judge.”82 Other judges blog though; why

then focus on Kopf?83 Simply, Kopf is regularly surprising and entertaining. His posted

opinions cover topics not often discussed by other federal judges, and his posts frequently often

make news in the legal world.84 He discusses a huge variety of topics ranging from his advice to

young lawyers, the Supreme Court, his childhood love of sailing, and the St. Louis Cardinals.

Judge Kopf’s discussions are varied and insightful. This discussion covers two posts of

particular interest, due to their both controversial and questionable nature.

The first example occurred on March 24, 2015. Kopf published a blog post entitled “On

being a dirty old man and how young women lawyers dress.”85 He tells a story about how his

daughter Lisa attended her sister’s wedding in a “low-cut dress,” and at his insistence wore a

“demure white sweater . . . over her very revealing frock” instead.86 Continuing, he discusses a

female lawyer from his court. “She is brilliant, she writes well, she speak eloquently . . . she

wears very short skirts and shows a lot of her ample chest. I especially enjoy the last two

attributes.”87 He sets out three rules “that young women lawyers should follow when

considering how to dress for court: 1. You can’t win. Men are both pigs and prudes. Get over it.

2. It is not about you. That goes double when you are appearing in front of a jury. 3. Think about

the female law clerks. If they are likely to label you, like Jane Curtin, an ignorant slut behind

your back, tone it down.” Criticism amounted in the press, particularly in the close-by Omaha

82 Kopf, Copyright and Stuff, supra note 79. 83 See generally Nancy Gertner, Authors Nancy Gertner, SLATE, http://www.slate.com/authors.nancy_gertner.html

(detailing Gertner’s blog contributions to Slate). 84 See David G. Savage, Judge under fire for blog post on Hobby Lobby case, L.A. TIMES, July 9, 2014, http://www.

latimes.com/nation/la-na-blogging-judge-20140710-story.html. 85 Kopf, On being a dirty old man and how young women lawyers dress, supra note 79. 86 Id. 87 Id.

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World-Herald.88 Kopf responded saying: “In the rough and tumble world of a federal trial

practice, it is sometimes necessary to see and react to that world as it is rather than as we wish it

would be.”89

The next case occurred after the Supreme Court case, Burwell v. Hobby Lobby Stores,

Inc., that held regulation requiring closely held corporations to provide health insurance coverage

for contraception violated the Religious Freedom Protection Act.90 Kopf responded saying “to

the average person, the result looks stupid and smells worse.”91 He continued, deeming the

decision “looks misogynistic because the majority were all men” and questioned whether if the

Court had not taken the case “I don’t think any significant harm would’ve occurred.”92 He

concluded promptly; “as the kids say, it’s is time for the court to stfu.”93 Criticism arose from

his blog post and he took a hiatus from blogging in January 2014.94 He received a sobering letter

from a “Nebraska lawyer . . . I have the highest respect for” simply titled: “Please stop.”95

Overall, Hercules and the Umpire contributes both constructively and uniquely to public

knowledge, but is tainted with questionable disclosures and unorthodox approaches for a federal

judge. The previous examples somewhat taint Judge Kopf’s otherwise standard blog for a well-

employed man in his 60s. The blog generally covers his work, perspectives on life, and always

refrains from delving into the issues or merits of his cases, circumvent violations of Canon

3A(6). By delving into his vacations, family and office-life; the public is granted a unique

88 Erin Grace, Grace: Reflecting on judge’s dirty old man’ blog post and his take on women lawyer’s attire, OMAHA

WORLD-HERALD, MARCH 26, 2014, http://www.omaha.com/news/grace-reflecting-on-judge-s-dirty-old-man-blog-

post/article_cc8b8913-c4e8-5cc2-8f05-a9c9c6eff65e.html#grace-reflecting-on-judge-s-dirty-old-man-blog-post-and-

his-take-on-women-lawyers-attire. 89 Kopf, Post Script to yesterday’s (infamous) post, supra note 79. 90 134. S.Ct. 2751 (U.S. 2014) 91 Kopf, Remembering Alexander Bickel’s passive virtues and the Hobby Lobby cases, supra note 79. 92 Id. 93 Id. (linking the Urbandictionary.com definition to “stfu”). 94 See Savage, supra note 84. 95 Kopf, Please stop, supra note 79.

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perspective into the working-life of a senior-status federal judge. Further, his wisdom serving

from the bench for over 20 years is consistently evidenced from constructive posts where he

offers his viewpoint on the legal issues of the day.96 His insight is valuable, and indeed

effectively contributes to the public’s knowledge of the judiciary and the very-inner thoughts of a

judge.

However, Kopf’s views on how young female lawyers choose to dress in-court detracts

from his court’s and litigants’ confidence in the judiciary’s integrity. Canon 1 of the Code of

Conduct requires “A judge should maintain and enforce high standards of conduct and should

personally observe those standards, so that the integrity and independence of the judiciary may

be preserved.” His view of female dress has minimal value in this respect, calling into question

his standards of conduct. It indeed demonstrates to young lawyers how their appearance will

shape the impression they make on the judge, which may be a contribution a judge best can

make, but made here in a poorly worded fashion.. His disclosure in this respect also reveals a

self-proclaimed old-fashioned mentality. However, in any other respect he isolates himself from

the respect of his female peers by delving into a topic that he draws few constructive conclusions

about, and has little evidence to support. Comments such as this cast into doubt his

“temperament” so as to create an appearance of impropriety.97 Suggesting to women how to

dress while confessing to being an “old dirty man” does little but ruffle the feathers of his

readers, and likely many female attorneys in his court. The post does not expressly violate

Canon 1, but certainly casts his required “high standard of conduct” into question. Finally, his

compliance with Canon 3A(3) requiring “a judge [to] be patient, dignified, respectful, and

96 See Kopf, Critical advice for young solo criminal defense lawyers, supra note 79. 97 CODE OF CONDUCT FOR UNTIED STATES JUDGES Canon 2A cmt. (2014).

21

courteous to . . .lawyers” is in question. Admitting publicly special “enjoyment” from female

lawyers in his court is certainly is lacking in dignity.

Further, his post featuring an ultimate dismissal of the Supreme Court with an explicit

and vulgar acronym, fails to capitalize on his unique position to inform the legal world. He

analyzes little, and delves into few legal ramifications or explanation of details. As a federal

judge he could have offered constructive criticism, but instead only questioned potential biases

of the majority-justices. It is possible he also preemptively disqualified himself from any

litigation concerning Hobby Lobby or religious exemptions. Canon 3C(1)(a) requires

disqualification where a judge has a “personal bias or prejudice concerning a party . . .”98 While

he demonstrates from his blog post, a clear disappointment and frustrations with the Supreme

Court, his attitude towards the parties are equally dismissive.

Kopf’s unique contribution to the legal-blogosphere is encouraging while interesting.

Since a hiatus, he has returned to blogging regularly, albeit his discussions have caused less

controversies. When asked on the effect of legal blogs on the profession, he responded: “My

guess is that legal blogs will partially fill the “practicality” gap between the legal academy and

the rest of us. Blogs provide a unique opportunity for law teachers to directly influence the

development of the law in near real time.”99 Judges today face new technology, and new

possibilities to positively impact the public on behalf of the judiciary.100 His approach is one of

personal disclosure and open, even blunt honesty. Ultimately, Judge Kopf’s blog effectively

achieves the goal of adding to public legal discourse.

98 CODE OF CONDUCT FOR UNTIED STATES JUDGES Canon 3C(1)(a) (2014). 99 Judge Richard Kopf (D. Nebraska): Legal Blogs Will Fill the Practicality Gap, LAW X. 0 (April 18, 2006), http://

3lepiphany.typepad.com/3l_epiphany/2006/04/judge_richard_k.html. 100 See Infra 29-30.

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D. Judge Posner and the Justice

Judge Richard Posner is a federal judge on the United States Court of Appeals for the

Seventh Circuit.101 Also a blogger, writer, speaker, and theorist; Judge Posner is one of the most

well-known American judges and legal thinkers of modern times. No stranger to off-bench

commentaries, he frequently publishes articles critical of courts, the government and other legal

scholars.102 Of interest is his critique of Supreme Court justice, Antonin Scalia. Judge Posner

and Justice Scalia—both appointees of President Reagan and both are considered, within the

limits of the term, “conservative--have traded remarks and criticism over legal rules and judicial

decision-making. Posner emphasizes making pragmatic legal opinions that apply to the real

world, whereas Scalia is a proponent of originalism.103 Unlike Judge Kopf, who addressed

justices in general, Judge Posner particularly singled out Judge Scalia in 2012. Contributing

majorly to the still-ongoing feud, he published an article titled “The Incoherence of Antonin

Scalia.”104

In June 2012, Justice Scalia and Byran Garner published the book “Reading Law: The

Interpretation of Legal Texts.” In response, Posner published his article in the New Republic on

August 24, 2012. His argues ultimately that Scalia’s reliance on textualism and dictionary

interpretations to read the law, is anything but a claimed “’objective’ interpretive methodology,

101 Seventh Circuit Judges, UNTIED STATES COURT OF APPEALS SEVENTH CIRCUIT, http://www.ca7.uscourts.gov/

contact.htm#posner. 102 See also Joel Cohen, An interview with Judge Richard A. Posner, ABA JOURNAL (July 2, 2014), http://www

.abajournal.com/magazine/article/an_interview_with_judge_richard_a._posner/?utm_source=maestro&utm_medium

=email&utm_campaign=weekly_email (confessing that “in my 32 years and 6,000 argued cases, I think there have

been only two motions to recuse me.”). 103 Corey Adwar, The Story of Why One Of America’s Most Renowned Judges is Feuding With Antonin Scalia,

BUSINESS INSIDER (July 2, 2014), http://www.businessinsider.com/judge-richard-posner-criticizes-antonin-scalia-

2014-7. 104 Richard A. Posner, The Incoherence of Antonin Scalia, NEW REPUBLIC, September 13, 2012,

http://www.newrepublic.com/article/magazine/books-and-arts/106441/scalia-garner-reading-the-law-textual-

originalism.

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but instead leads to a “pattern of equivocation exhibited throughout [the] book,” finding it

ultimately “unconvincing.”105 He first claims Scalia is not a true textual originalist. In United

States v. Eichman for example, he finds odd that Scalia voted unconstitutional a statute

forbidding the burning of the American flag, as an abridgment on the first amendment right to

freedom of speech.106 Posner argues, the original eighteenth-century concept of freedom of

speech to be substantially narrower than today, and “burning cloth” to fall outside the scope of

speech. He concludes Scalia’s voting was “exceedingly unoriginalist.”

In examining the book, Judge Posner takes on several of Scalia’s examples. As to

Brown v. Board of Education, Scalia claims that “recent research persuasively establishes [the

ruling in Brown that separate but equal is not equal] was the original understanding of the post-

Civil War Amendments.”107 Posner instead claims Brown “a singular embarrassment for textual

originalists that the most esteemed judicial opinion . . . . is nonoriginalist” and that “had the

provision been thought, in 1868, to forbid racial segregation of public schools, it would not have

been ratified.”108 His disagreement continues towards object to Scalia’s reliance on finding the

meanings of words in dictionaries and “omitting contrary evidence.”109 Posner takes issue with

Scalia’s applauding White City Shopping Center, LP v. PR Restaurants LLC, where the court

found burritos and tacos were not defined as “sandwiches.”110 “Scalia and Garner stop there, as

if that dictionary reference were the court’s entire decision, thus confirming the use of the

dictionary as a guide to the meaning of legal documents. But the court had not stopped with the

dictionary.”111 Posner then delves into the court’s analysis and how the dictionary definition was

105 Id. 106 496 U.S. 310 (1990). 107 347 U.S. 483; Posner, supra note 104. 108 Posner, supra note 104. 109 Id. 110 21 Mass. L. Rep. 565 (Mass. Super. 2006); Id. 111 Id.

24

in fact not used by the court, concluding “Dictionaries are mazes in which judges are soon lost.

A dictionary-centered textualism is hopeless.”112

Far from violating canons of the code of conduct, Posner’s dialogue with Justice Scalia is

a constructive and valuable exchange between two influential legal scholars. Even though the

code of conduct does not apply by its terms to Supreme Court justices, and applies to the judges

it covers only as guidance, but we can still analyze Scalia’s behavior with the code as a guide.113

Even so, disagreement between judges of different courts is expected and not barred by the

canons. Further, constructive criticism and explaining theories of legal interpretation may even

work to achieve the goal of Canon 1; “an independent and honorable judiciary [ ] indispensable

to justice in our society.”114 Both Posner and Scalia are influential in the legal world, and

experienced judges. When Posner explains his own methods while critiquing another, he

contributes to an honorable judiciary by demonstrating the active and constructive roles judges

take in legal thought. Further, Canon 3A(1) requires a judge to “maintain professional

competence in” the law.115 In his article above, Posner demonstrates knowledge and research,

far exceeding mere “competence.”

Posner’s criticism of a judge of a higher court, is proper and appropriate behavior for a

federal judge. The Canons do not forbid or discourage a Circuit judge from criticizing openly a

Supreme Court justice. His article is consistent with Canon 4A(1), which encourages judges to

write on activities concerning the law. Posner’s many articles, books and speeches are protected

under this same canon. Also, Canon 3A(1) in fact requires a judge to “be faithful to . . . the

law[,] and should not be swayed by . . . fear of criticism.” Posner then should not dissuaded

112 Id. 113 Supra at 3. 114 CODE OF CONDUCT FOR UNTIED STATES JUDGES Canon 1A (2014). 115 Id. at Canon 3A(1) (2014).

25

from others criticizing his opinion, even when Scalia himself responds.116 Expertly, Posner does

not mention his particular opinion on any parties involved in the cases. Unlike Judge Kopf, who

displayed somewhat of a bias against Hobby Lobby, Posner navigates only by discussing legal

interpretation. Thus, efficiently he discusses cases without possibility of disqualification on any

future actions in his court.

Judge Posner later responded in an interview to his disagreement with Justice Scalia. He

stated simply “I also happen to disagree with Justice Scalia’s philosophy of originalism. I think

that’s legitimate criticism.”117 Indeed his disagreement was a permitted and constructive

exercise of off-bench writing. On the nature of his frequent off-bench commentaries, Posner said

“I do think at some point a judge’s out-of-court public comments become ethically improper.

There are genuine confidences one has to respect. But I don’t see any problem with writing a

book or an article that doesn’t stir up scandal or make accusations, that is dispassionate and

responsible.”118 Posner serves as a model of how judges who wish to give extrajudicial opinions

should act. He demonstrates an expert understanding of what judges are permitted to discuss as

well as what is appropriate. His commentaries do not call the independence or the integrity of

the judiciary into question. He exemplifies the importance of the public’s confidence in judges.

While judges may be permitted to discuss broad areas, Posner understands scandals and

accusations degrade this confidence of the judiciary’s integrity.

116 See Terry Baynes, Antonin Scalia: Judge Richard Posner Lied in Judicial Philosophy Criticism, HUFFINGTON

POST POLITICS (September 29, 2012), http://www.huffingtonpost.com/2012/09/18/antonin-scalia-richard-

posner_n_1892286.html. 117Cohen, supra note 102. 118 Id.

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E. Judge Griffin and the President

Discussion of the off-bench conduct of state judges is worth certain exploration. While

the canons of the Code of Conduct for United States Judges apply strictly to federal judges many

analogous state codes are substantially similar or mirror the federal counterpart; in fact the

federal code is based on earlier model codes promulgated by the American Bar Association119

Even so, state judges face unique obstacles. First, most state judges are elected.120 State judges

of course, have latitude towards campaign speeches and maintaining their judgeships.121

However, when campaign-season is in the distance, state judges still are held to high standards of

judicial ethics of their extrajudicial conduct. This leaves an open discussion as to how both sides

handle the challenges of off-bench commentary. Next, state judges hold a unique positions

different from those of federal judges. Likely presiding in their home-state, handling local and

state cases and controversies, and earning a smaller salary than their federal counterparts; state

judgeships are, in the vernacular, “closer to the people.” A federal district or circuit judge is

presidentially nominated, life-tenured, and hears cases of in and out-of-state players. . How do

these differing “levels” of judgeships affect off-bench conduct? What follows is a single

application of the federal code to a case of a state judge conduct.

In 2007, Circuit Judge Wendell Griffen of the 5th Division in the Sixth Judicial District

of Arkansas faced disciplinary action by the Arkansas Judicial Discipline and Disability

Commission for a series of speeches and remarks he made critical of President George W. Bush

and his administration.122 He claimed the federal government’s response to Hurricane Katrina in

119 See also CODE OF CONDUCT FOR UNTIED STATES JUDGES Compliance with the Code of Conduct (2014)

(explaining code does not apply to part-time judges, judges pro tempore, or certain retired judges). 120 Supra at 5. 121 See Id. 122 Doug Smith & Fritz Brantley, Removing the gag, ARKANSAS TIMES (November 1, 2007), http://www.arktimes.

com/arkansas/removing-the-gag/Content?oid=865666&showFullText=true.

27

New Orleans was ineffective and rooted in racism.123 Further he criticized President Bush for

nominating John. Roberts as Chief Justice of the United States.124 He also expressed

“wholehearted support” for a minimum wage increase.125 On the then-current war in Iraq, he

was quoted saying ““Everything I know about right and wrong . . . . everything my parents told

me about truth and lies, everything I understand about God, tells me that this is wrong.”126

Following a complaint, the commission charged him with “damaging the public confidence in

the integrity and impartiality of the judiciary.”127 The Arkansas code of judicial conduct, like

many state codes, mirrors in many ways, the federal code of conduct. Canon 1.2 of the Arkansas

code requires “A judge [to] 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.” Canon 2 of the federal code similarly requires “a judge [to] avoid

impropriety and the appearance of impropriety in all activities” and at Canon 2A “a judge [to]

respect and comply with the law and should act at all times in a manner that promotes public

confidence in the integrity and impartiality of the judiciary.” However, unlike the federal code,

Arkansas Rule 2.4 forbids “political [. . .] or other interests or relationships to influence the

judge’s judicial conduct or judgment.”

Many of Griffen’s statements would be allowed whether he was a federal or state judge,

according to the Supreme Court Case Republican Party v. White.128 The court found prohibition

123 Id. 124 Id. 125 ACLU Files Legal Statement on Behalf of Appellate Court Judge Wendell Griffen, ACLU (July 10, 2007),

https://www.aclu.org/news/aclu-arkansas-supports-judge-facing-discipline-criticizing-bush-administration?redirect

=free-speech/aclu-arkansas-supports-judge-facing-discipline-criticizing-bush-administration. 126 Adam Liptak, When a Judge Offers an Opinion Away From the Bench, N.Y. TIMES, April 16, 2007, http://www.

nytimes.com/2007/04/16/us/16bar.html. 127 Adam Liptak, Arkansas: Judge Allowed to Speak Out, N.Y. TIMES, October 2, 2007, http://www.nytimes.com

/2007/10/02/us/02brfs JUDGEALLOWED_BRF.html?ex=1349064000&en=5b1fe02c6081311a&ei=5124&partner

=permalink&exprod=permalink. 128 536 U.S. 765 (2002).

28

of judicial candidates to express their views on disputed legal and political issues to be

unconstitutional. Thus, Griffen explaining his views on the federal government’s response to

Hurricane Katrina in Louisiana, the war in Iraq, or minimum wage laws logically fall under this

exception and are permitted under his first-amendment free speech rights. However, as a federal

judge, Griffen’s escape from disciplinary charges may not mean he evades future recusals in

later cases. He would perhaps need to disqualify himself if parties before him were the Bush-

administration, certain governmental bodies thereof, or those who are both outspoken Bush-

supporters and republicans.129 Further, cases involving wage disputes or contractual issues

involving wages, not otherwise before an administrative body such as the NLRB, would require

his disqualification as well.

James A. Badami, of the Arkansas commission was quoted questioning “If you are a

staunch Republican and a Bush supporter and have to come before this judge . . . and this judge

has now said some terrible things about Bush and the Bush administration — and now those

people are having to appear before him?” However, the commission ultimately dropped the

charges against the judge.130 Griffen’s actions & ultimate vindication demonstrates two key

points about extrajudicial commentaries, both federal and state. First, judges have wide latitude

to comment and lend opinions on a variety of issues. Before 2002 and White, it was undecided

whether judges, either state or federal could make extrajudicial comments on controversial

issues. Today, as evidenced by Griffen, and even Judge Kopf, freedom of speech in this regard

has been loosened significantly. Second, state judges are very much like their federal

counterparts regarding their abilities to comment off-bench. As state codes of conduct are often

129 See Liptak, supra note 126. 130 Debra Cassens Weiss, Opinionated Judges’ Suit Against Discipline Body Tossed, ABA JOURNAL (November, 5

2007), http://www.abajournal.com/news/article/opinionated_judges_suit_against_discipline_body_tossed; Liptak,

supra note 113.

29

similar to or even the same as the federal version, the outcomes of disciplinary procedures are

similar.

V. Social Media and Concluding Thoughts

Robert Dworkin, noted legal scholar and philosopher met with several other noted legal thinkers

in Bonnieux, France in 2000. When discussing justice and media in the information age he

stated:

“Most legal reporting is deplorable, I agree. Judges do not make it

better by withdrawing institutionally−by discouraging dissenting

opinions that journalists will seize on, for example. The only thing

that they can do, so far as I can now see, it try to redirect attention,

away from personality and background, which journalists find easy

to report, and toward argument, toward intellectual disagreement,

which journalists now find so hard. Judges could help by writing

more lucid, less legalistic opinions that bring principle and

disagreements over principle more to the surface.”131

Dworkin’s point here is two-fold. Judges must steer the public conversation toward intellectual

disagreement. Additionally, judges can help shape this conversation through their opinions. He

saw legal reporting was lacking, and thus placed upon the judges an affirmative duty to remedy

the public’s perception of the law and judiciary. While stated at the turn of the century,

Dworkin’s argument remains viable today even with new digital technologies and the

omnipresence of the internet.

131 JUDGES IN CONTEMPORARY DEMOCRACY 268 (Robert Badinter & Stephen Breyer eds., New York University

Press 2004) [hereinafter JUDGES IN CONTEMPORARY DEMOCRACY].

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First, through new digital media, judges have a perfect opportunity to advance the

conversation about the law and judiciary in ways not previously possible. As Dworkin iterated,

legal reporting can be lacking in many ways. Most legal reporters did not attend law school, and

nuances or ramifications of individual cases and decisions may often be obscure to those not

legally trained. Thus, the legal community is responsible to ensure the public understands and

appreciates the law. Judge Kopf, works to bridge the gap between the courts and “the rest of

us.”132 In particular, he correctly saw blogs as unique opportunities for directly influence on

development of the law.133 Through his online presence he fills in the otherwise blank space in

the public knowledge of the life of a judge. Other judges including the aforementioned Judge

Posner and former-Judge Nancy Gertner also have influenced the online conversation by

blogging as well.134 Theirs are opinions more strictly on legal and jurisprudential issues, but

nevertheless important. In taking advantage of these online resources, judges impact not only

more of the legal world but those in the general public as well, interested in the work of the court

that affects their livelihood.

Second, the unique positions federal judges occupy means they have unique voices to add

to the public discourse Whether Judge Jackson believed he was justified in discussing the merits

of U.S. v. Microsoft in this respect is immaterial. The press, the legal community and the public

was interested and even captivated. He spoke at events, colleges, and occupied the press for

hours at a time.135 Further, Judge Griffin’s views on the President and his administration,

minimum wage, or the War in Iraq grabbed the attention of his local Arkansas constituency.

132 Supra at 21. 133 Id. 134 See Gary Becker & Richard Posner, THE BECKER-POSNER BLOG, http://uchicagolaw.typepad.com/beckerposner/;

Gertner, supra note 83. 135 Supra at 10.

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Even Judge Shaw’s seemingly-minute endorsement of a political candidate garnered the interest

of the St. Louis press. Judges are important, their words influential. What they choose to say in

public, outside of their courtrooms can captivate more than just the legal world. Speeches,

books, and other traditional media is appropriate. However, full embrace of the digital realm

through blogs, and articles ensure that “principle and disagreements over principle” are truly

brought to the surface and the public mind.136

Federal judges through their off-bench commentaries have contributed constructively to

public knowledge since the 1700s. Also at times, these speeches and writings have caused

questions as to the integrity and impartiality of the judiciary. The codes of conduct both federal

and for the states offer wide latitude for judges to add to the public intellectual discussion.

Taking advantage of this limited freedom of speech is a skill understood and mastered by some

such as Judge Posner, while escaping others.

136 JUDGES IN CONTEMPORARY DEMOCRACY at 268.