Judge Adelman defends his criticism of Chief Justice Roberts and President Trump (Updated)

"Judges are encouraged to comment on the law because we have a particular interest, knowledge and familiarity."

|The Volokh Conspiracy |

Yesterday, I blogged about a law review article by Judge Lynn Adelman. My post drove a news cycle. Judge Adelman was praised on Slate and Above the Law. Law 360 and the ABA Journal rounded up other coverage. Plus Fox News.

And the Washington Post actually got Judge Adelman on the phone. Judges should never answer calls from reporters about matters of public concern. Alas, Judge Adelman has already demonstrated his lack of discretion. Here is an excerpt:

In a phone interview with The Washington Post Tuesday, Adelman was unapologetic. "I think it's totally appropriate to criticize the court when there's a basis for it," he said. "Judges are encouraged to comment on the law because we have a particular interest, knowledge and familiarity."

"Encouraged to comment on the law"? I think Judge Adelman is referring to comment [2] to Rule 2.1 of the ABA Model Code of Judicial Conduct.

Rule 2.1 provides, in its entirety,

RULE 2.1

Giving Precedence to the Duties of Judicial Office

The duties of judicial office, as prescribed by law,* shall take precedence over all of a judge's personal and extrajudicial activities.

COMMENT

[1] To ensure that judges are available to fulfill their judicial duties, judges must conduct their personal and extrajudicial activities to minimize the risk of conflicts that would result in frequent disqualification. See Canon 3.

[2] Although it is not a duty of judicial office unless prescribed by law, judges are encouraged to participate in activities that promote public understanding of and confidence in the justice system.

Judge Adelman is mistaken. A judge's first duty is to be a judge. And that duty takes "precedence" over all extrajudicial activities–including talking to the Washington Post or publishing in the Harvard Law & Policy Review. Comment [1] explains that judges should try to minimize potential conflicts of interest. Judge Adelman expressly acknowledges that he created conflicts! But don't worry about it, he says, because there is no-Trump related litigation in Wisconsin.

Asked if the journal article might prompt some lawyer to seek his recusal in a case, Adelman said he didn't see that happening. He said he had been a judge for two decades and "all the parties that have ever appeared before me think I'm fair.

"Maybe someone could make an argument [for recusal] in some high-profile case about the Trump administration," he said. "But I don't get any of those. They're all brought in D.C. and California."

Judge Adelman doesn't even see the risk for recusal right in front of his eyes. We have a presidential election coming up. Wisconsin very well may be a swing state, with the potential for election disputes. I trust Judge Adelman will recuse from any election litigation involving Trump, and perhaps others in the Republican party. His article was equally harsh on the GOP.

Comment [2] says judges are "encouraged" to engage in public commentary to "promote . . . confidence in the justice system." Judge Adelman is doing quite the opposite. He writes that the Chief Justice perjured himself, and the Supreme Court is subverting democracy. These arguments would be perfectly valid if made by anyone else in our polity. But not judges. His comments undermine confidence in our judiciary–quite deliberately so.

Moreover, his remarks about President Trump can in no sense fit within the scope of Comment [2]. Indeed, Judge Adelman doubled down on his comments about President Trump.

He said he agreed his comments were "strong," but defended them as "totally proper." He was not attacking Trump or the court but rather "explaining what they're doing. People can disagree with that explanation."

The article, he said, was "about inequality and economic inequality" and the court. The references to Trump were for "context." "I needed to say something about what's going on now," he said.

No, you did not "need" to say anything. You didn't need to write this piece at all. And the barbs against Trump were not "context." They were punditry–and fairly crude punditry at that. Here is a snippet:

And Trump, who has few commitments to substantive policies of any sort, found it much easier to ally himself with Congressional Republicans than to make an effort to enact policies beneficial to the general public.32 To follow through on his populist campaign promises would have required him to engage in the difficult and unpleasant work of bucking his own party. Thus, while Trump's temperament is that of an autocrat, he is disinclined to buck the wealthy individuals and corporations who control his party.

I hope someone close to Judge Adelman can explain how he is abusing his office. Regrettably, I predict fans will simply pump him up, and call him a hero.

Update: Judge Adelman also spoke with Tony Mauro of the National Law Journal. Here are some excerpts:

National Law Journal: Do you have any second thoughts about what you wrote?

Adelman: Well, no. I thought it was important to say. I wanted to say them. I didn't say them to create a big firestorm. I didn't say them to kind of get a lot of attention. But I think what I said is right. I mean, I think it needed to be said.

National Law Journal: Do you think you've violated any code of conduct prohibiting political activity or bias?

Adelman: No. The codes encourage us to talk about legal developments. I don't think that's an issue. I mean, we're encouraged because we're judges and we have knowledge and experience and dealings with the law. Look, somebody could say it's stronger than most statements, and that's probably right. But I don't feel a concern about that.

National Law Journal:  But you do go into areas that are not just the law. You write about Trump policies and things like that.

Adelman: It's not really policy. I think that was a bit of a backdrop to the article because the whole article focused on really democracy and inequality and economic inequality among other things. So in a sense, I think that the comments about how non-judicial branches of government are functioning and how they're impacting that issue were important to put in there. I think it's fairly scholarly in that respect.

He offered similar comments to the Washington Post. No, nothing "needed to be said." No, the Code does not "encourage" you to make accusations that the Chief Justice perjured himself. No, your comments were not "fairly scholarly."

Update 2: Judge Adelman also spoke to CNN:

In a telephone interview with CNN on Thursday, Adelman said he has been caught off guard by attention to his law review essay.
"All this fuss has disarmed me," he said, but quickly added, "I felt it needed to be said. Other people have written on this subject. But it's such an important issue. You can't say it enough." He said he wanted to add his unique perspective as a judge.

Adelman told CNN he believes he crossed no line and, rather, fulfilled a duty.
"It's reasonable to criticize decisions of the Supreme Court," he said. "I understand that I'm bound by them. And I've done that (in rulings). But I think I have a duty to criticize decisions that are flawed."

He has now told at least three reporters it "needed" to be said. No, it didn't. And he went far, far beyond criticizing a Supreme Court decision.

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  1. More “norms” being ignored by the people who make a show of pretending to care about “norms”. Do we expect those people to weigh in against this breach of “norms”? No. We do not expect that.

    1. “I am saddened that this distinguished judge is lowering himself to Trump’s level.”

  2. Ideologues do not respect norms because they fundamentally do not acknowledge them as legitimate. That’s all we’re seeing here. Impeach and disbar.

    1. He could go on a shooting rampage in the courtroom, and as long as he was insulting Trump while he was firing the gun, you wouldn’t find enough votes in the Senate to convict, probably not enough in the house to impeach.

      1. Interesting. Do you think if he and Trump (having famously shot a man on the streets of New York City) were co-defendants, there would be significant overlap in the House and Senate?…i.e., Congressmen who would convict both of them, or, ones who would acquit both of them.

  3. “all the parties that have ever appeared before me think I’m fair.”

    LOL Like people would tell a federal judge anything else.

    1. That’s like people who post shitty recipes in culinary groups and then proclaim, “None of the guests who ate it complained.”

    2. Bob,
      Since you are not a lawyer, your guess is reasonable. But completely wrong.

      Yes, people do not DIRECTLY tell federal judges that “You’re being unfair.” But lawyers *routinely* say it to reporters, other lawyers, anyone who will listen, etc.. If lawyers think a judge is unfair or biased, that information gets out to the public. (Esp now that the internet exists.). And federal judges quickly become aware of what their reputation is in the legal community. They probably know, in general, what their reputation is among their fellow federal judges.

      1. Yes, people do not DIRECTLY tell federal judges that “You’re being unfair.”

        Or that “You’re really dumb” … except people called FE Smith :

        1. Judge: Are you trying to show contempt for this court, Mr Smith?

        FE Smith: No, my lord. I am trying to conceal it.

        2. Judge: You must not direct the jury: what do you suppose I am on the bench for, Mr Smith?

        FE Smith: It is not for me, your honour, to attempt to fathom the inscrutable workings of Providence.

        3. Judge : Mr. Smith, I have listened to your lengthy submission in detail, but I must confess I’m none the wiser.

        FE Smith : No my lord, but better informed

      2. “And federal judges quickly become aware of what their reputation is in the legal community. They probably know, in general, what their reputation is among their fellow federal judges.”

        And the ones with bad reputations totally admit that in national publications. “Yah, everyone thinks I’m a really shitty judge, but hey, life tenure, what do I care?”

        And I guarantee that some of the parties that have appeared before him think he’s unfair because some of the parties who appear before any judge are going to believe they were treated unfairly, even if it isn’t true.

        1. jph,
          Fair point.

  4. I agree with Judge Adelman’s observations although I understand the concerns of those who believe that the bench is not the ideal source for calling out questionable behaviour. Still, I prefer commentary like this be found in law review articles rather than as part of written judicial decisions, which as the Slate piece points out is becoming a definite thing.

  5. Just out of curiosity, and because I’m too lazy to look it up, what is the process for formally dealing with a judge who oversteps? (Short of impeaching him.) Is there some way for the Chief Justice, as head of the Federal Judiciary, or someone else in the Judicial Conference, to have a quiet word with him?

    1. Here is a Bloomberg law article about it, it does seem most of the complaints are not acted on, but it looks like I’m one case since 2010 a judge has all of his case assignments suspended.

  6. Yet another fringe benefit of the Trump Administration: hack federal judges continue to out themselves as partisans.

  7. The same people who do shit like this, break every confirmation process norm during Kavanaugh hearings (cough Feinstein) and flippantly talk about packing the Court get apopleptic when Trump does something (usually) far minor

    1. Obviously untrue.
      No one got apoplectic when, for example, Trump called the Washington governor “A snake.” People rolled their eyes and shook their heads. But apoplectic? Not even close. When Trump lied about the size of his inauguration crowd? No…people mocked him (understandably). People derided his inability to tell the truth about even silly inconsequential matters. But apoplectic?

      When Trump tried to blackmail Ukraine to interfere in our upcoming election? Absolutely, in that case. When Candidate Trump bragged about sexually assaulting women on tape? Absolutely.

      So, I reject your premise. BUT, even if you are correct and I am incorrect…do you really find it so objectionable that we hold the President (the world’s MOST POWERFUL HUMAN BEING!!!) to a higher standard? That is surprising to me–it seems perfectly reasonable to do so.

      1. No one got apoplectic when, for example, Trump called the Washington governor “A snake.”

        Because everyone who knows who Jay Inslee is knows that he’s a snake.

        And they probably agree with Trump’s sentiments.

        1. I know Jay Insless. Not well, but I’ve known him for a few decades. So, you seem to be lying about your “everyone” statement.

          Your dumb comment deliberately ignored the main thrust of my original comment. Probably a wise attempted diversion on your part.

          1. I’m guessing you live in Seattle, because that’s the only place Insless gets praised.

            1. Nope. Southern California. (in Santa Monica, in fact). But I do have lifelong friends up in Seattle and used to visit them quite often.

              I have seen both liberal and conservative pundits praising his responses (so far) to the corona virus over this past week. Including on Fox News. (I think, but am not 100% sure, that this was on Tucker’s opinion show.) We agree that praising his political actions is the same as ‘praising him,’ yes?

      2. I object to holding him to a higher standard. He should be held to the same standard as any other American citizen. To do otherwise is a perversion.

        1. You’re entitled to your opinion, of course. But I find it ridiculous. And, of course, it means that you are 100% supportive of this federal judge. After all, if we make a conscious decision to not hold the president to any elevated standard, you of course would presumably think it’s equally a perversion to hold a judge or justice to a higher standard.

          I seriously doubt that any more than a handful of other people support your extreme position.

  8. Also that these people can talk about conservative judges “undermining” democracy, and then cheer on Roe, Obgerfell and the creation of a slew of unenumerated rights on the other, throws into stark relief how brazenly dishonest they are.

    1. Shorter Sam,
      “I always argue in good faith. People who do things I disagree with are clearly acting in bad faith.”

      Thanks, Sam. Objective, reasonable, and thoughtful opinions like yours are always welcome here at Reason’s VC comment sections.

      1. You paraphrase Sam accurately.

        The problem is that you could use the same words to paraphrase Adelman. But you don’t, because that would require objectivity.

        1. No, I think it’s probably accurate re Adelman. Probably accurate re lots of people. (Alas) I didn’t mention him (or Sen. Cruz, or AOC, or Louie Gohmert) because they are not participating in the comment thread, and because no one had previously asked my opinion in this regard.

          Probably better not to assume bad faith when there’s a perfectly cromulent explanation available.

  9. His comments DO encourage confidence in our legal system, because he shows that the downtrodden have someone in their corner who speaks truth to power. Without his speaking up, the poor and inept would see the legal system only as a burden imposed on them by the powerful and rich. They might eventually resort to riots and revolution.

    See how easy that is?

    1. Are judges supposed to be in someone’s corner ?

  10. lol at “My post drove a news cycle.”

    Like anyone cares about you. I liked this blog better before it got taken over by prima donnas.

  11. Another piece of shit robed in black.

  12. “…Comment [2] says judges are “encouraged” to engage in public commentary to “promote . . . confidence in the justice system.” Judge Adelman is doing quite the opposite. He writes that the Chief Justice perjured himself, and the Supreme Court is subverting democracy. These arguments would be perfectly valid if made by anyone else in our polity. But not judges. His comments undermine confidence in our judiciary–quite deliberately so….”

    I completely disagree. I think that, for a very large swath of the population (who believe that Dem-appointed and Rep-appointed) judges routinely perjure themselves in confirmation hearings), public statements like the above from existing federal judges INCREASES confidence in our judiciary, rather than decreases it.

    I am sure that, for many others, such statements do risk a loss of confidence in our judiciary. That is definitely a potential downside.

    1. How would anyone in the future consider Adelman as anything other than a partisan hack and look at his decisions through that filter?

      1. Lots of people would say, “Man, we got a judge who was willing to speak truth to power. My case is not the least bit political, and I don’t know if this judge will rule for me or against me. But at least I know I have a judge who is unafraid to speak his mind. At least I don’t have a judge who is a sniveling coward.”

        Again, I am sure a lot of parties will be bothered by the judge’s public comments. I am troubled by a judge making intemperate comments in public, as I personally think it shows a lack of restraint and suggests to me that she/he might show similar lack of restraint in my case. But I think that comments like “Anyone will…” or “Everyone will…” in cases like this are silly, as I think it’s very reasonable that many people (rightly or wrongly!!!) will be fine with this. Imaging something ridiculous like a judge wearing a MAGA cap in court, as he hears your slip-and-fall case. Of course a judge should not be doing this. But if you’re a huge Trump fan, my guess is that, on some level, you’d probably be a bit reassured be seeing it. Or, anyway, many people would be reassured by seeing this . . . “Hey, this judge is a fellow Trump supporter. I’ll at least get a fair hearing in my case.”

        1. I would not be reassured if a judge was wearing a MAGA cap in court.

          1. Nor would I. But many people would, I believe.

        2. My political position is “a pox on both their houses” because both sides suck real bad. They both spend all their time spouting horseshit that insults my intelligence.

          So I’m not a MAGA guy, but if I had business in front of Adelman I wouldn’t trust him to be unbiased. If he doesn’t realize how inappropriate this is then politics had addled his brain too much. There are judges that lean right that I wouldn’t trust to be unbiased either. Roberts is not one of those judges.

          1. Roberts is not unbiased. He is biased in favor of the notion of the Supreme Court being seen to be a neutral umpire calling balls and strikes. So biased that he’s willing to tweak his decisions to improve the optics.

            Which leads him to consider the politics of any controversial decision very carefully, resulting it being obvious to everyone that whether the pitch is in the strike zone is not the most important thing to him. He dreads the jeers of the crowd, which is why he “saves” constructions, and punts whenever he can.

            Schumer’s threats will no doubt be successful. Roberts will find a way to dodge finding the Louisiana law to be OK.

            I don’t think Roberts is wicked, he’s just weak. And the result is that through his weakness, he gnaws away at the foundations of what he believes in – a judiciary that can put politics aside.

            To paraphrase the man himself – the way to stop deciding cases based on the political ramifications of the decision, is to stop taking the political ramifications of the decision into account.

            1. He dreads the jeers of the crowd, which is why he “saves” constructions, and punts whenever he can.

              Or maybe he does those things because he thinks that’s what a good judge should always strive to do.

    2. Sorry. Suggesting the Supreme Court members perjured themselves in no way increases the confidence in the Judiciary System.

      1. To be strictly fair, the courts have men with guns to back them up in case public confidence doesn’t do the job.

        1. The guns, as President Eisenhower demonstrated in Little Rock, belong to the executive – not the courts. Imagine how different things would be if Eisenhower had refused to enforce the court’s order.

    3. If a judge wants to publicly open his mouth and spew venom, why the fuck should anyone trust him? Judges aren’t supposed to do that, it’s a dereliction of responsibility. If you need to say shit like that and “it needs to be said”, show some respect for the bench and step down to say it. What a punk.

  13. When Adelman is saying that GOP concerns don’t come up in Wisconsin, he’s lying. He ruled on one of those concerns six years ago.

    https://townhall.com/tipsheet/christinerousselle/2014/04/29/judge-strikes-down-wisconsin-voter-id-law-n1831147

    1. So voter ID laws are a partisan GOP concern?

      1. It would appear so, just as opposing them appears to be a partisan Democratic Party concern.

  14. I find it odd that Prof. Blackman, who has attacked an ABA model rule prohibiting lawyers from making statements discriminatory on the basis of “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, or gender identity” is happy to support a rule that muzzles judges from expressing their honest non-racial, non-sexual, non-religious etc. opinions of the judiciary because they are not sufficiently upbeat.

    1. Why? I don’t think I even see a tension between those positions.

      1. His criticism of the lawyers’ model rule was that it was an unacceptable intrusion on their First Amendment rights. I would expect those principles to also lead him to denounce content-based restrictions and forced speech on political topics, the class of speech most central to the purpose of the First Amendment and most strongly protected by it.
        Maybe that is why the Code of Conduct for United States Judges doesn’t mirror the ABA’s rule and commentary on this topic, and instead says something closer to what Judge Adelman expressed:

        As a judicial officer and a person specially learned in the law, a judge is in a unique position to contribute to the law, the legal system, and the administration of justice, including revising substantive and procedural law and improving criminal and juvenile justice. To the extent that the judge’s time permits and impartiality is not compromised, the judge is encouraged to do so, either independently or through a bar association, judicial conference, or other organization dedicated to the law.

  15. Another super power wielded by President Trump. Exposing the prejudice of leftist Judges.

  16. I’m still astounded by this — not that a judge could say such things (they’re common) but that a professional law journal would publish what is clearly an op-ed rant. I know the journal is run by a Left-leaning society, and I’d expect a Left-oriented analysis … but THIS?

    1. No one wants to play by the rules anymore and accountability is just sport you inflict on the weak. I have zero respect for the legal business, because that’s all it is. Business. Fuck ethics and the rules.

  17. Adelman : The second way in which the Court is weakening democracy is by reinforcing the enormous imbalance in wealth and political power that has developed in recent decades and that has contributed to undermining democracy. The Court has done this by consistently strengthening the economic and political power of corporations and wealthy individuals, as, for example, through its campaign finance decisions

    In a cushioned penthouse somewhere, Mini Mike is reading this and chewing on gravel.

  18. Judge Adelman is also currently trying to avoid minimum sentencing guidelines in a current case. He doesn’t want to hand out the five year minimum sentence to a rioter / arsonist.

    https://www.jsonline.com/story/news/crime/2020/03/10/milwaukee-judge-balks-5-year-sentence-sherman-park-arson/5009471002/

  19. I don’t disagree with a judge criticizing laws and policies. I agree ad hominem criticism of individual political leaders and judges, especially the character of individual Supreme Court justices, is inappropriate.

    1. As I’ve said in prior posts, I think it’s a reasonable course for a judge who strongly disagrees with a law to write an opinion upholding the law and then saying that, while legally valid, the law is wrong and the legislature ought to reconsider it, the governor or president ought to consider a commutation or pardon, etc. This is a reasonable and honorable course in the face of the strong policy disagreements that sometimes occur in our politics.

  20. Although Adelman is no doubt enjoying all the publicity, he apparently doesn’t realize or care that his activities are strengthening the public’s perception that our judiciary is being taken over by judicial appointees whose judicial decisions are guided by political partisanship rather than by established legal principles.

  21. I wonder how Judge Adelman would react to an attorney practicing before him echoing these comments about Judge Adleman.

    Maybe, just maybe, making Judges unaccountable was a mistake. Just a thought.

  22. Should one, like FDR, take into consideration that Judge Adelman is 80 years old and should be retired?

  23. Let me guess, law professors should have a monopoly on criticizing Supreme Court decisions? With no competition from politicians or journalists, right. And certainly not from judges, who have direct experience having to apply flawed decisions. They like mafioso, should just keep it zipped if they know what’s good for them.

  24. It would not be a stretch to apply White v. Republican Party of Minnesota to this controversy. While perhaps judges shouldn’t comment, see Alsdorf: The Sounds of Silence, Hastings LQ 30:2 https://static1.squarespace.com/static/591ccf16db29d6afe8606726/t/59862ffe1e5b6cba5260f2d0/1501966337480/Alsdorf.pdf

    that doesn’t mean they may not.

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