The Volokh Conspiracy
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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."
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.
