The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On February 17, USA Today published a story titled "Federal judges' association calls emergency meeting after DOJ intervenes in case of Trump ally Roger Stone." My first reaction was, What is the Federal Judges Association? I follow the Federal Courts fairly closely, and had never heard of this group. Why would federal life tenured judges need a trade organization?
I learned that the group functions like a voluntary union. It advocates for, among other things, higher judicial pay and benefits. For example, the group filed an amicus brief in Beer v. United States. That case concerned cost of living adjustments (COLAs) for federal judges. The group also filed a class action suit on behalf of all Federal Court Judges. The Court of Federal Claims ruled in favor of the class in Barker v. United States.
That sort of work seems well within the responsibilities of a voluntary union for judges. But more recently, the FJA–or at least its President–may have exceeded those boundaries. The USA Today offered this account:
A national association of federal judges has called an emergency meeting to address growing concerns about the intervention of Justice Department officials and President Donald Trump in politically sensitive cases, the group's president said Monday.
Philadelphia U.S. District Judge Cynthia Rufe, who heads the independent Federal Judges Association, said the group "could not wait" until its spring conference to weigh in on a deepening crisis that has enveloped the Justice Department and Attorney General William Barr.
"There are plenty of issues that we are concerned about," Rufe told USA TODAY. "We'll talk all of this through."
Velma White, an aide to the judge, said the meeting is set for 1:30 p.m. Wednesday. USA TODAY had previously reported that the meeting would take place Tuesday.
Rufe, nominated to the bench by President George W. Bush, said the group of more than 1,000 federal jurists called for the meeting last week after Trump criticized prosecutors' initial sentencing recommendation for his friend Roger Stone and the Department of Justice overruled them.
Rufe said the judges' association is "not inclined to get involved with an ongoing case," but she voiced strong support for Jackson.
"I am not concerned with how a particular judge will rule," Rufe said, praising Jackson's reputation. "We are supportive of any federal judge who does what is required."
On Wednesday, the federal judges are set to convene via a conference call involving 15 to 20 officers and members of the association's executive committee.
Founded in 1982, the 1,100-member association supports "a fair, impartial, and independent judiciary," according to its website.
Rufe said the group has not decided how it will report the result of its meeting, if at all. "We just could not wait until April to discuss matters of this importance," she said.
Judge Rufe erred. She should not have said anything to the reporter, Kevin Johnson. Even if Johnson found out about the meeting (perhaps from another FJA member), Judge Rufe response should have been "no comment." Judges should not talk to the press about such politically-charged matters. Judge Rufe should have known how her statements would be interpreted in this toxic climate. No surprise, her comment was used to further criticize President Trump and Attorney General Barr. (I criticized those criticisms in a Washington Post Op-Ed).
Apparently, Judge Rufe's statement was not well received by other judges. The New York Sun offers this account in an editorial titled, The Resistance Starts To Infect Our Courts. (I have already worried to colleagues that the "Veteran" Ninth Circuit judges are the first wave of an internal judicial resistance to President Trump's nominees):
Then, after the Justice Department moved to reduce a sentencing recommendation for Roger Stone, USAToday reported that the Federal Judges Association was calling an emergency meeting. Its president, District Judge Cynthia Rufe, said the idea was to address concerns about how Justice officials and the President were intervening in sensitive cases.
That shocked a number of federal judges, and Judge Rufe later tried to play it all down. Not, though, before one of the towering figures on the Second Circuit, Jose Cabranes, fired off to Judge Rufe a now widely circulated email. It expressed concern that the emergency meeting would "purport to speak for the federal judiciary on a pending political question."
"I urge you to come off this precipice, and to withdraw from active politics in the name of the federal judges of this country," Judge Cabranes, a longtime member of the FJA, wrote in his brief cable. "If you do not do so, you risk confusing the public about the role of the courts in our constitutional order and thereby deepening the crisis in confidence in our institutions."
I agree entirely with Judge Cabranes. The FJA should stay in its lane. Advocate for judicial pay? Fine. But the organization should not inject itself into partisan politics.
Yesterday, the FJA sent an email to its member list-serve, which I received from an FJA member:
From: The Officers of the Federal Judges Association
To: Members of the Federal Judges Association
Re: Statement to Our Colleagues
There have been misunderstandings about a Federal Judges Association meeting originally scheduled for last week, resulting in questions and comments from several members. We wish to apprise all members of the facts.
A conference call of the FJA Executive Committee was set for last Wednesday. Those telephonic meetings between the annual meetings of the Board of Directors are common. Following the last Board meeting in April 2019, the Executive Committee met by phone in June, September, and November 2019, and January 2020. We regularly review financial statements, plan for future meetings, and confer with chairs of FJA committees on the work they are doing.
Despite reports to the contrary, last week's meeting was not an "emergency" meeting. It was not scheduled in response to any public controversy or pending case. Unfortunately, though it was not anticipated that the calling of the meeting would become public, it did. That fact led to inferences and reports that were, at a minimum, misleading.
President Cynthia M. Rufe issued no public statements or press release of the originally scheduled meeting, nor did she solicit press contact. Last Monday afternoon one reporter called seeking confirmation of the objectives of our Executive Committee meeting. How that reporter learned of the meeting is unknown. Judge Rufe acknowledged the fact that a meeting had been called but rejected the reporter's speculations as to its timing and purpose.
At no time was there any intent to involve the FJA in any political controversy or in any pending case. The FJA is non-partisan and seeks, like the judiciary itself, to remain outside of the political fray. Similarly, the FJA does not comment on the merits of any matter pending in any court, consistent with the Code of Conduct that applies to all of us. To avoid risk that the meeting might draw further attention, it was postponed. We chose not to issue a statement at that time for the same reason.
Our meetings are intended to pursue the important business of the FJA. They are a necessary part of fulfilling our duties and responsibilities to you, our colleagues, to address issues such as pay and benefits, security, civics education, the status of senior judges, and international rule of law, in accordance with the mission of the FJA. The officers and directors of the FJA remain focused on these purposes and appreciate your support for these common goals.
The FJA membership includes judges with sometimes differing positions on matters within our purview. We welcome your comments and inquiries. As an organization that depends on volunteers, our responses may not be immediate, but your officers and directors will respond as we can. In the meantime, we will continue to work toward the goals that we share.
This statement is largely non-responsive to the USA Today report. Again, here are the direct quotes from Judge Rufe:
- "There are plenty of issues that we are concerned about. We'll talk all of this through."
- "I am not concerned with how a particular judge will rule," Rufe said, praising Jackson's reputation. "We are supportive of any federal judge who does what is required."
- "We just could not wait until April to discuss matters of this importance."
Is it possible the USA Today reporter made up each these quotes? Sure. But the email does not allege any such misconduct. Rather, the email says there were "misunderstandings" and "inferences and reports that were, at a minimum, misleading."
Judge Rufe should have known better. A reporter asked her questions about Stone's sentencing. She should have replied "no comment." Saying "We'll talk all of this through" would include talking about the Stone case. And her comment about "we just could not wait" is very difficult to make sense of, unless she is talking about Stone's sentencing. Budgetary matters are not urgent.
The FJA email does nothing to address Judge Rufe's comments. In any event, she does not speak for the FJA. Her comments did not represent an official press release or communication of the group. Judge Rufe should apologize, and take care not to speak to the press in her position of leadership–especially about such a politically-charged topic.
Update: The Wall Street Journal received the same email, and offered this comment:
So what happened? It could be that FJA and the press got their wires crossed, or that reporters inflated the significance of what they heard. Or it could be that at least some officers did plan some sort of political detour in the meeting and the organization is now backtracking in embarrassment. Either way, the story created perceptions of a politicized judiciary, and the FJA could help itself and the judiciary by setting the record straight.