Flashback to 2005: Judicial Conduct of the 2nd Circuit Opinion concerning Judge Calabresi's Political Comments

Judge Calabresi apologized. And so should Judge Adelman.

|The Volokh Conspiracy |

In my prior post, I noted that Judge Adelman's writings are not consistent with the ABA Model Code of Judicial Conduct.  Such overtly partisan remarks are rare for federal judges. The only comparable example I can think of came from Judge Guido Calabresi's June 19, 2004 remarks before the American Constitution Society's convention. Calabresi's conduct was the subject of a published memorandum by the Judicial Conduct of the Second Circuit.

Calabresi spoke on a panel discussion, titled, "The Election: What's at Stake for American Law and Policy." Here are his remarks, as reported by the Second Circuit, with my comments interspersed:

Okay, I'm a judge and so I'm not allowed to talk politics and so I'm not going to talk about some of the issues which were mentioned or what some have said is the extraordinary record of incompetence of this administration at any number of levels, nor am I going to talk about what is really a difficult issue which is the education issue, which is an incredibly complicated one, which I'm glad you talked about.

It is very common for someone to say, "I am not going to talk about" X. By merely flagging X, he is talking about it. If you don't want to talk about X, don't mention it.

I'm going to talk about a deeper structural issue that is at stake in this election, and that has to do with the fact that in a way that occurred before but is rare in the United States, that somebody came to power as a result of the illegitimate acts of a legitimate institution that had the right to put somebody in power. That is what the Supreme Court did in Bush versus Gore. It put somebody in power. Now, he might have won anyway, he might not have, but what happened was that an illegitimate act by an institution that had the legitimate right to put somebody in power.

ABA Model Rule 2.1 encourages judges "to participate in activities that promote public understanding of and confidence in the justice system." Calabresi, like Adelman, took the opposite approach. Such comments undermine confidence in the judiciary system.

The reason I emphasize that is because that is exactly what happened when Mussolini was put in by the King of Italy, that is, the King of Italy had the right to put Mussolini in though he had not won an election and make him Prime Minister. That is what happened when Hindenburg put Hitler in. I'm not suggesting for a moment that Bush is Hitler.

I'm skeptical. Audience can connect dots. Judge Adelman wasn't as circumspect. He wrote that "Trump's temperament is that of an autocrat." And Adleman's remarks weren't off-the-cuff. They were prepared for a published journal.

I want to be clear on that, but it is a situation which is extremely unusual. When somebody has come in in that way they sometimes have tried not to exercise much power. In this case, like Mussolini, he [Bush] has exercised extraordinary power. He has exercised power, claimed power for himself that has not occurred since Franklin Roosevelt, who after all was elected big and who did some of the same things with respect to assertions of power in time of crisis that this President is doing.

Here, Calabresi was opining on President Bush's executive actions–actions that could come before the Second Circuit. Rule 2.1, Comment [1] urges Judges to avoid creating "risks of conflicts that would result in frequent disqualifications." Indeed, at least one prominent Bush-era case passed through the Second Circuit: Ashcroft v. Iqbal, then known as Iqbal v. Hasty.

It seems to me that one of the things that is at stake is the assertion by the democracy that when that has happened it is important to put that person out, regardless of policies, regardless of anything else, as a statement that the democracy reasserts its power over somebody who has come in and then has used the office to take… build himself up.

These remarks, shortly before the 2004 presidential election, were overtly partisan. He was campaigning against George W. Bush.

That is what happened after 1876 when Hayes could not even run again. That is not what happened in Italy because, in fact, the person who was put in there was able to say "I have done all sorts of things and therefore deserve to win the next election." That's got nothing to do with the politics of it. It's got to do with the structural reassertion of democracy. Thank you.

Judge Calabresi, like Judge Adelman, cloaks his partisanship with the guise of protecting "democracy."

Judge Calabresi promptly apologized to the Chief Judge of the Second Circuit on June 24, 2004.

I write you as Chief Judge to express my profound regret for my comments at last weekend's American Constitution Society Conference. My remarks were extemporaneous and, in hindsight, reasonably could be–and indeed have been–understood to do something which I did not intend, that is, take a partisan position. As you know, I strongly deplore the politicization of the judiciary and firmly believe that judges should not publicly support candidates or take political stands. Although what I was trying to do was make a rather complicated academic argument about the nature of reelections after highly contested original elections, that is not the way my words, understandably, have been taken. I can also see why this occurred, despite my statements at the time that what I was saying should not be construed in a partisan way. For that I am deeply sorry.

I will not take the time here to outline the nonpartisan theoretical framework I was trying to develop. In retrospect, I fear that is properly the stuff only of an academic seminar. For, whatever I had in mind, what I actually said was too easily taken as partisan. That is something which judges should do their best to avoId, and there, I clearly failed. Again, I am truly sorry and apologize profusely for the episode and most particularly for any embarrassment my remarks may have caused you, my colleagues, and the court. You should feel free to share this letter with our colleagues.

Calabresi's apology, as well as an admonition from Chief Judge Walker, were released to the public.

Five misconduct complaints were filed against Judge Calabresi. These complaints fell under four heads: (1) advocacy that the President not be reelected, (2) comparing the President to Hitler and Mussolini, (3) political bias or engagement in political advocacy, and (4) disagreement with Bush v. Gore.

Ultimately, the Council found that Calabresi violated the canons of ethics with respect to the first head of conduct. There was not enough precedent to resolve the second claim. The third and fourth claims were dismissed. The Council found and the public admonition was "both a sufficient sanction and corrective action." I encourage you to read the Second Circuit's careful analysis, which I will not repeat here.

Judge Adelman should apologize. But he likely won't. Indeed, those who are inclined to agree with him are promoting his cause. The group "Demand Justice" apparently wants him to testify before Congress! Judge Adelman is welcome to testify before Congress on this issue if he resigns his post.

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  1. First: The complaint both last time and here are with the appearance of partisanship; everyone knows judges have political leanings. It’s smells of Victorian-style bowdlerization to object to the partisan utterances while ignoring partisanship reality.

    Second: Both judges seem to me to have crossed the line not by showing they have partisan leanings, but by advocating for those viewpoints. The same line-crossing shows up from time to time when judges say stupid things in court, telling rape victims to dress more moderately, for instance.

  2. Roland Freisler was a partisan judge.

    https://en.wikipedia.org/wiki/Roland_Freisler

    I’m not comparing either of the judges in this post to Roland Freisler.

    You may ask why I mention Roland Freisler if I’m not trying to draw some sort of comparison.

    Simple – I’d like plausible deniability, while at the same time winking to the audience and putting the idea in their head that these judges are Nazis.

    Godwin Schmodwin.

    1. Tying two articles together — nice!

  3. Judge Calabresi, like Judge Adelman, cloaks his partisanship with the guise of protecting “democracy.”

    I fully understand and respect the need for judicial nonpartisanship and how departing from that has nothing to do with “protecting democracy.”

    At the same time I also understand that what Trump is doing with the joyous participation of a fully complicit senate is to pack the courts with not just party loyalists but Trump cult loyalists at all levels. How many judges that the ABA considered unqualified or unfit to serve have been pushed through by this cabal? (Would this be the same ABA who’s Moral Code is being cited here)?

    Their agenda is clear. Their methods are clear. Their conduct is clear and they barely pretend any more to be playing by the rules that are supposedly held so dear. If a judge decides to comment on that and no longer hold up the pretense that “both sides are doing it” does that make him “partisan?” No. Because not both sides do it. The conservative faction of the judicial population is the one drunk with and for power.

    I know perfectly well in response to this there will be passionate denials citing wrong things (real or imagined) Obama did or Holder did. Of course anyone writing what I wrote here will be written off as a delusional liberal. The “both sides do it” theme is beneficial to the side that is really breaking the code of conduct.

    So I for one, not being a judge, appreciate a judge who is willing to clearly state what we all know is going on. Taken in isolation it is fully understandable what it is not acceptable. Taken in context it is fully understandable why it is necessary.

    1. Are you saying no previous President picked judges he liked? That all previous Presidents were so pure and altruistic that they just picked randomly?

      Maybe you should check your own partisanship before accusing this administration of being the most partisan in history.

      1. Sorry but this worldview just doesn’t hold up to scrutiny.

        https://www.brookings.edu/blog/fixgov/2018/06/04/senate-obstructionism-handed-judicial-vacancies-to-trump/

        Obama got only 4% of his Court of Appeals nominees and only 7% of his District court nominees confirmed. The McConnell senate blocked everything else, handing 88 judgeships to Trump. GWB got 17% and 22% respectively.

        That doesn’t even count what happened to Garland.

        I read somewhere that now 1 in 4 federal judges is a Trump nominee. I don’t know if that is true but it sounds right. It is possible that some or even many of those judges can do their jobs without partisan bias but the record so far doesn’t look good.

        We will see what happens in the next round of Supreme Court decisions.

        1. “That doesn’t even count what happened to Garland.”

          Some country-music singer should compose a sad ballad about Garland. It will leave the audience in tears.

          1. I prefer to contemplate the joyful prospect of two additional Supreme Court positions.

            1. It’s a good bet that President Trump will be replacing Justice Ginsburg in his next term; who are you speculating will be the second to be replaced?

        2. You’re misreading the Brookings piece. The 4% and 7% refer to the percentage of confirmed Obama judges who were confirmed in the last two years of his eight-year presidency. The rate of confirmation of Obama judges was much higher than 4% and 7%.

          It is true that Obama nominees were confirmed at a much lower rate in the last two years of his presidency than nominees of Reagan, Clinton or GWB during the last two years of their presidencies. But all in all, as the Brookings piece notes, GWB put 321 appeals court and district court judges on the bench in eight years and Obama 323. This seems like the more relevant comparison.

        3. “Obama got only 4% of his Court of Appeals nominees and only 7% of his District court nominees confirmed.”

          This is a blatant misreading of the cited article and entirely inaccurate.

    2. How many judges that the ABA considered unqualified or unfit to serve have been pushed through by this cabal?

      7 of the 193 Article III judges (3.6%) appointed by Trump were rated “not qualified” by the ABA. This compares to 5 out of 327 (1.5%) of Bush appointees and 3 out of 378 (.8%) of Clinton appointees.

      I would note that the details of some these ratings appears to say more about the ABA than the caliber of the nominees. (Recent Ninth Circuit appointee Lawrence VanDyke being among the most striking.)

  4. Judge Adelman is welcome to testify before Congress on this issue if he resigns his post.

    He’s welcome to do whatever the hell he wants unless he’s impeached and convicted, I’m pretty sure.

    1. There are lesser punishments that a Judicial Council can apply if they find misconduct, e.g. public censure, assigning no cases to him. To be sure they wouldn’t prevent him from testifying before Congress, but impeachment and conviction wouldn’t have that effect either.

  5. I want to thank Judge Adelman for his honesty. He could have plotted against the Trump administration by concealing his bias within legal speak. Now he gives the Administration cause for him to recuse himself if any policy gets on his docket.

  6. Yes, lets use this blog to run a protracted attack on the comportment of individual judges.

    The first story was newsworthy and interesting, the update was an update.

    But this would become a very lame crusade.

    1. I doubt cherry-picked partisan polemics from an overconfident, underqualified climber are going to count for much in any practical context. Should be great fun at a Federalist or Heritage panel discussion, though!

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