Do Judges "Have an Important Role to Play in Our Society" Beyond Judging?

A disagreement.

I have written before here at the blog about why I disagree with judges boycotting particular law schools in an effort to influence law school culture. Over at David Lat's substack, Judge Lee Rudofsky, who is considering whether to join the Columbia clerk boycott, offers a perspective on the role of judge that is relevant to that discussion and that I think is worth addressing:

Regardless of whether I join or not, I generally (and mournfully) agree that Columbia University has become an incubator of antisemitism and anti-Americanism. And I do think that, at some point, judges must step up to the plate as leaders of the bar to help stop the spread of the virulent Jew hatred that is being normalized on college campuses and elsewhere across the country.

Judges have an important role to play in our society beyond the work we do in the courtroom or in chambers. We have a special responsibility to stand up for the rule of law and to stand against mob violence, especially where such violence echoes an age-old evil that once led to the murder of 6,000,000 Jews and millions of other innocents.

I respectfully disagree.  As I see it, judges as judges do not have an important role to play in our society beyond the work they do in the courtroom or in chambers. They shouldn't be stepping up to the plate, and they shouldn't be trying to help American society solve problems like anti-Semitism, in any kind of official capacity.

In the specific case of federal judges, people who are federal judges were given power because they fit a particular profile. They had the right age, the right education, and the right set of views that a President and a Senate were looking for to fill judicial positions. Being nominated and confirmed gives them a judicial power to decide cases. That is an extraordinarily important job, and we should all thank judges for their public service.

With that said, nothing in that process qualifies a judge for some broader role in society.  Judges are not overseers of our culture, or specialists in mob violence or how to address it. If, as individuals, judges want to take on a broader role in society, they are free to step down from the bench and pursue it. But I don't think they should take on that role as judges.

The problem, it seems to me, is that the "special responsibilities" Judge Rudofsky suggests judges have can be hard to distinguish from politics. I don't mean politics in the Republican versus Democrat sense (although it's presumably no coincidence that all of the judges who have publicly joined the boycott are Trump appointees). I mean politics in the broader sense of how our society resolves competing claims about justice and fairness. When those claims don't happen to involve a legal claim brought by a party in court, turning that question of politics into a question of law, I think judges acting in their official capacities should sit on the sidelines.

Of course, if judges want to weigh in on law reform questions, or write law review articles or other legal commentary, that's of course fine. They have the same right to do that as anyone else. But it seems to me the boycott framework crosses an important line: It uses judges' official government power to employ law clerks in an effort to influence the world of culture and politics. And I don't think that line should be crossed.

Comments

[Kazinski]

So in other words, Charles Barkley was right, Judges and Athletes shouldn't be held up as role models.

I somewhat disagree, but certainly not vociferously, while Actors, Athletes, and Artists are not selected based on their intelligence, knowledge of law, founding documents, scholarship and the roles and powers of the institutions in our society, judges are selected on those criteria.

And to the extent they comment on such issues then their really is nothing wrong with making such comments, as long as it doesn't violate any ethical rules.

[santamonica811]

I think I generally agree with you. My default rule is: Anyone and everyone has the right to opine on important issues. The main reason why judges should NOT do this (in at least some cases) is because judges have the rare job of deciding cases. If you’re a judge, and you want to loudly and publicly take a stand on some issue…that’s just fine. But you better recuse yourself for all cases in the future that involve that issue.

You want to appear in a pro-choice ad? You want to write an op-ed against open borders? You want to sign on to a letter refusing to hire students from a specific university because that institution fosters antisemitism (or anti-gay, or anti-Black, etc etc)? I will fight for your right to have your voice heard.

But you damned better recuse from any case even touching on any reproductive choice issue, or immigration or racial discrimination issue, or [fill in the blank] issue.

Because, while your individual right to be heard is of course important; the public’s collective right to have confidence in our judicial system is infinitely more important.

[Mr. Bumble]

"... the public’s collective right to have confidence in our judicial system is infinitely more important."
Which is sorely being tried lately.

[Sarcastr0]

It's being tried by people who axiomatically believe Trump is innocent, and any people or institution that indicates otherwise is corrupt.

That's not not the fault of the judiciary. Or Biden. Or even Trump. That's the GOP having some priorities that are not particularly American.

[Mr. Bumble]

Presumption of innocence is not particularly American?

[David Nieporent]

The presumption of innocence is a proposition that the state bears the burden of proof in a criminal proceeding. It is very different than the MAGA dogma that Trump is innocent, and therefore any attempt to prosecute him is inherently illegitimate.

[Lee Moore]

The presumption of innocence is a proposition that the state bears the burden of proof in a criminal proceeding.

This cannot be repeated too early or too often. It's a rule applying to the criminal justice system, not a mantra for going about your daily life.

There are way too many people, including some non morons, who imagine it's a moral principle that ordinary humans - outside the criminal justice system - should turn off their brains and automatically disbelieve allegations and accusations and cruel stories, unless and until a court has ruled them justified. (btw - you're allowed to keep the brain on, even after the court has ruled, since courts are by no means infallible.)

It's as silly as the contrary proposal to turn off your brain - believe all women.

[SRG2]

I find the easy counter-argument to those "Trump innocent until proven guilty" types is to ask whether therefore Hillary is innocent.

[loki13]

Well, that's generous of you.

I have found that consistency is not their strong suit.

[David Nieporent]

To be clear, I think that private individuals should observe the principle of the presumption of innocence: if one hears an accusation, one should not automatically assume it's true; one should wait for evidence before forming a conclusion. But I don't think that private individuals are bound to the same strictures as jurors: to only consider certain forms of evidence, to wait for all the evidence before weighing it, and to insist on proof beyond a reasonable doubt.

[TwelveInchPianist]

"To be clear, I think that private individuals should observe the principle of the presumption of innocence: if one hears an accusation, one should not automatically assume it’s true; one should wait for evidence before forming a conclusion."

Apparently, that's not the PC position nowadays.

[Lee Moore]

Well I agree, though I would add the presumption of guilt in the same sense.

Don’t automatically assume it’s false either. Wait for evidence - maybe even seek evidence.
Use your head.

I suspect lurking beneath the surface of your comment is the “principle of generosity” - since most people are mostly ok, treat “probably ok” as your working assumption.

Which is fine so long as you use it on an “expected value” basis. If you come across someone who can do you or yours little harm, be warm and unsuspicious.

But if you come across someone who’s in a position to damage you - be wary.

In short, use your head.

[Dilan Esper]

This is broadly misunderstood. I remember defenders of the late OJ Simpson said things like "he was innocent until proven guilty and the state didn't prove he was guilty". Which was... true, but has nothing to do with whether YOU should think he's guilty.

The presumption of innocence is super important! I wouldn't trade it for the world. But it's a presumption that arises out of the function of criminal trials. It doesn't apply to the wider world. You should, of course, make up your own mind about what you think of the various criminal charges against former President Trump. But as long as you are not part of the criminal justice system that is trying him, you need not presume him innocent.

[Lee Moore]

The presumption of innocence is super important! I wouldn’t trade it for the world.

Well at least, not for Wales 🙂

[Randal]

The presumption of innocence is a proposition that the state bears the burden of proof in a criminal proceeding.

Well, that and the proposition that the sentence comes after the conviction.

[Magister]

The presumption of corruption is an unAmerican conspiracy theory.

[Kazinski]

Well, I do think Judges should avoid the overtly political, bit it is up to them, even though most state and local judges have to be political to keep getting elected.

But for questions like Anti-Semitism, or whether violence is justified when demonstrating, or whether blocking freeways is justified if you feel something deeply, I don't have a.problem. Anti-Semitism should be condemned along with other prejudice, and breaking the law is, well, breaking the law, so judges should be against that, and people should go into a judges courtroom expecting to get punished if they are guilty.

[David Nieporent]

My default rule is: Anyone and everyone has the right to opine on important issues.

Judges do not. They waive that right when they take the bench. (I'm not suggesting they can be put in jail for doing so, obviously. But it's grounds for removing them from the bench, for them to exploit their position as judges for their own personal political agendas.)

[Absaroka]

FWIW, my father, while in the military and later a federal employee would not sign petitions, contribute to campaigns, or take any kind of public position on political issues. He followed current affairs closely, voted carefully, and would gladly talk politics with family or friends, but he didn't think it appropriate to take any public stands.

(I'm not suggesting that's the only valid ethical stance, but it was his)

[loki13]

I think your father had a good sense of ethics.

The judges that I admired behaved similarly. It takes a lot more character and integrity to understand that certain positions mean that you are best served keeping your opinions (however well-intentioned, and strongly felt) out of the public discourse.

[Commenter_XY]

Kaz, I also disagree with Professor Kerr, and would offer this analogy for his consideration.

A century ago, in Germany, there was a robust judicial system. Judges sat by, said very little as Germany transmogrified into the Third Reich. And they continued to hear cases the whole time. They had no ‘special’ responsibility. That is what happens when justice departs and judges remain silent.

That cannot happen here. So long as judges who speak out do not prejudice defendants that appear before them, and/or do not violate ethical rules, I hope (and expect) judges to to uphold the rule of law, and speak out when it is threatened.

[Lee Moore]

That is what happens when justice departs and judges remain silent.

1. You think judges speaking out, or resigning, would have prevented that ? Anti-Nazi judges sounding off about the wickedness of the regime would just have got them fired and replaced by others.

In a system governed by thugs, it's by no means a reprehensible policy for a judge to keep on trying to do your job of judging by the law.

2. Germany transmogrified into the Third Reich constitutionally.

[Social Justice is neither]

So you prefer the Soros solution and find that more your speed?

[Lee Moore]

I think it is somewhat teenage to assume that you have the cojones to be a hero. Heroes are admired, because heroism is rare.

But by all means, milk it when you've done it yourself.

[Ed Grinberg]

.

That is what happens when justice departs and judges remain silent.
1. You think judges speaking out, or resigning, would have prevented that ? Anti-Nazi judges sounding off about the wickedness of the regime would just have got them fired and replaced by others.
In a system governed by thugs, it’s by no means a reprehensible policy for a judge to keep on trying to do your job of judging by the law.

You have a point re: resigning (it doesn't accomplish much). But the dichotomy you draw between "speaking out" vs. "keep on trying to do your job of judging by the law" is a false one. It's not an either/or proposition. You can do both.
from Wikipedia:
In 1933, Kreyssig was pressured to join the Nazi party, but refused, citing his need for judicial independence. ...
He was still able to work in his profession and in 1937, he was transferred to Brandenburg an der Havel to the lower district court. His work as a mental health court guardianship judge made him responsible for several hundred mentally challenged children and adults. ...
After the number of death certificates of his wards began to accumulate on his desk, he began to suspect the deaths were connected to the "mercy killing" that had begun. He reported his suspicions in a letter to Minister of Justice Franz Gürtner, dated July 8, 1940. He pilloried the Nazis' Aktion T4 euthanasia program. He also addressed the disenfranchisement of prisoners in Nazi concentration camps, making all his arguments on firm legal grounds.
"What is right is what benefits the people. In the name of this frightful doctrine — as yet, uncontradicted by any guardian of rights in Germany — entire sectors of communal living are excluded from [having] rights, for example, all the concentration camps, and now, all hospitals and sanatoriums."
Kreyssig then filed a charge against Reichsleiter Philipp Bouhler for murder. He filed an injunction against the institutions in which he had housed his wards, prohibiting them from transferring the wards without his consent.
On 13 November 1940 Kreyssig was summoned by Gürtner, who laid before Kreyssig Hitler's personal letter that had started the euthanasia program and which constituted the sole legal basis for it. Kreyssig replied, "The Führer's word does not create a right," clearly signifying that he did not recognize this as a legal right. Gürtner then told Kreyssig, "If you cannot recognise the will of the Führer as a source of law, then you cannot remain a judge." In December 1940, Kreyssig was suspended. Efforts by the Gestapo to send him to a concentration camp failed. Two years later, in March 1942, Hitler forced Kreyssig to retire.

[Rev. Arthur L. Kirkland]

Says the guy cheering on the settlers' terrorism in the West Bank and waving off the pile of children killed by Israel's bombs in Gaza.

Are you still crowing about Pres. Biden's approach to Israel's right-wing belligerence, clinger?

Next step could be refraining from providing defensive materials. Do you think Netanyahu, Ben Givr, Smotrich and the other war-criming Israeli right-wingers have a self-preservation instinct strong enough to overcome their superstition-fueled bigotry and delusion?

[loki13]

" Judges sat by, said very little as Germany transmogrified into the Third Reich."

Look, if you're reaching to the Third Reich already, you're doing something wrong. But let's be fair, here. This wasn't on the judges. There were a lot of people in Germany that weren't just sitting by- they were actively advocating for what happened, because (1) they believed and had those attitudes, or (2) they benefitted from it (removing the Jews from their positions in industry and academia did a lot to advance some other people's careers), or (3) they just didn't care. This was a societal problem, and while we can all try to think of Martin Niemöller's famous quote, there was something rotten going on.

But to the subject of the post- no, I don't agree. Because most people have passionate beliefs. What to you might be Nazis, might be Trump, or Biden, to someone else.

Judges do have a special responsibility. TO BE JUDGES. There's a reason that we refer to people who are judicious. Judges should be temperate, and when I was clerking, judges were incredibly circumspect in their public roles. The main special responsibility of judges is to be viewed as neutral arbiters who uphold the law, and the more they speak out on issues (regardless of the issue), the less credibility they have overall for their special responsibility.

If you've watched The Crown, or are familiar with the monarchy in England, it's a similar (and thankless) role. You have great power, but that power lies in only exercising it in circumscribed circumstances. Once you start to veer out of your lane, your power is diminished.

Even now, there are judges that I know by name that I simply don't trust because of their public statements. Because by making them, they are assuming that the role they have been given makes this ... about them. That they are the special ones that we should listen to.

Which is the opposite of how a good judge should operate.

[Josh R]

The rule of law was being attacked in Germany (e.g., Jews being deprived due process). Judges, under their normal responsibilities, had the duty to push back. In contrast, Rudovsky is advocating for judges to enter politics. Now perhaps virulent antisemitism justifies that approach. But, how do you cabin it so it doesn't extend to Ho-like behavior?

[Randal]

If virulent antisemitism were actually happening, this would be a more interesting discussion. As it is, it's just an excuse for Trumpy judges to bring politics into their courtrooms.

[Noscitur a sociis]

What people in Germany could have done to stop the Nazis is an interesting question. But I'm not sure that, say, a handful judges refusing to hire Heidelberg grads would have been especially productive.

[TwelveInchPianist]

"And to the extent they comment on such issues then their really is nothing wrong with making such comments, as long as it doesn’t violate any ethical rules."

But they're not just commenting. They're using federal money that they're supposed to use to advance their judicial role to achieve personal societal goals.

[Lee Moore]

I think Prof Kerr is being somewhat precious.

Judges should judge cases according to the law. Perhaps it would be nice if we had a pile of judges whose political opinions, we were confident, never influenced their decisions. But we don't. There's loads of rampantly political judges, as is obvious not merely from their speeches outside court, and who appointed them, but also the rulings they make in court and the explanations they offer for them in their judgements.

If a judge wants to sound off about politics by boycotting students who have chosen to attend Nazi or Bolshevik law schools, I don't see that as any more political than condemning Nazi or Bolshevik law schools in a speech outside court.

Nor do I see it as any more likely to influence their decisions in their judgements, than their politics generally.

[Ed Grinberg]

Fully agree. Well put.

[Randal]

Huh? Terribly put. You agree with Orin that judges don’t have any special responsibility to opine on politics, and it would be preferable if they didn’t. The only thing you’re adding is that that’s unlikely to happen — and I suspect Orin also agrees with you there.

So, you wanted to write something that sounded anti-Orin, and you succeeded to the extent that you bamboozled poor Ed, but really you entirely agree with him? Not cool.

[Lee Moore]

Well I agree that an ideal judge would judge away impartially, and at least moderately intelligently, in court, and otherwise keep the trap firmly shut.

But Prof Kerr doesn't really think that, even if theory :

Of course, if judges want to weigh in on law reform questions, or write law review articles or other legal commentary, that's of course fine.

Weighing in on law reform questions is politics. Even confining yourself to weighing in on procedural matters - like say Chevron - is politics. Weighing in on anything about how the law should or should not be changed is politics. If we're going purist on judges, they need to shut up about everything.

But the main point where I differ with Prof Kerr is that he's drawing lines that I don't agree with :

But it seems to me the boycott framework crosses an important line: It uses judges' official government power to employ law clerks in an effort to influence the world of culture and politics.

I don't think there's a line there. The judge in boycotting a university for political reasons is politicking. The judge who insists in a ruling that the idea is passe that married couples have an advantage when it comes to bringing up children is politicking, the judge who gets on his hind legs at a conference to speak about the need to be kinder and more generous to offenders is politicking. It's all of a piece.

So in a word (OK two) I think Prof Kerr is engaged in selective prosecution.

[Randal]

Come on, you aren’t that dumb.

Yes, it’s all politicking. That doesn’t mean some politicking isn’t worse than others.

For instance, you agree — because you said — it would be worse for a judge to decide cases based on politicking than it would be for them to just speak at conferences about it. So there’s a line that involves the difference between just stating an opinion versus allowing that opinion to influence official duties.

Orin’s point is exactly that. Hiring clerks is an official duty of the judge, not as critical of one as actual judging, but still a power they wield. So there is a difference between speaking at a conference and attempting to use the power of clerk selection to push their politics.

At the other end of the spectrum, there’s contributing to legal research. Yes, that can also be infused with politics, but even the rules of the judiciary agree that there’s a line there where the expertise of judges may be worth the risk. Copying from Alkali below:

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…

So no, I don’t think you even really buy the relativism that you’re selling here, where all politicking on the part of judges is exactly the same, and if we tolerate any of it we might as well tolerate all of it. It’s a pointless point. A non-point.

[Lee Moore]

Hiring clerks is an official duty of the judge, not as critical of one as actual judging, but still a power they wield.

No, it’s no more a judicial “duty” than a judge deciding what kind of chair to instal in his office. A clerk, like a chair, is simply a tool of the judge’s trade. (And if the judge decides against buying a really good comfortable chair from Uighur Slaves R ‘Us because he has a problem with slavery, that’s his business. And no, it would not be wicked for him to say that that’s why he didn’t pick that chair.)

The judicial “power” is whatever the judge can do to litigants.

Obviously if a judge picks a clerk because, say, he likes her legs, and she turns out to be useless as a clerk, and as a result the judge writes some particularly poor opinions that he would have avoided had he picked the fat clerk with the appalling pimples, then that’s bad work by the judge.

The only relevance of the clerk is whether it turns out to be a good tool of the judge’s trade, or a bad one.

[Randal]

Well, I'm sure you'd be here bitching if a group of judges decided to boycott Israeli-made office chairs. So again I call BS.

[Lee Moore]

I'd think they were idiots, but I wouldn't think they were abusing their judicial power.

You are, of course, welcome to think Ho is an idiot, as you please.

[Randal]

That is so laughable. I bet I can find past comments from you condemning BDS, but now you say that BDS is equivalent to speech? Stop digging man, just stop.

[Lee Moore]

It’s very unlikely that you’ll find anything from me condemning BDS, since I had to look it up to remind myself what it is.

But you’ve got yourself confused. What private persons politick about exposes them to criticism for the silliness of their opinions.

Ditto judges – we are free to criticise them for the content of their politics.

But – qua judge – we are allowed to add a criticism for politicking at all. This offense is independent of specific political content.

Also very widespread.

[Rev. Arthur L. Kirkland]

I am becoming increasingly convinced that judicial law clerks should be hired, assigned, and managed by a civil service office.

[Aubrey LaVentana]

"So where did you study law, my new young clerk?"
"Well, Judge Kirkland, I went to a prairie law school you probably never heard of, but my mentor was Josh Blackman."

[California Dreamer]

I agree with you that activities of this sort won't affect a judge's decisions. But one of the most important aspects of a judge's job is the APPEARANCE of impartiality. For the Judicial branch to retain its credibility, the public must feel that judges are not taking sides in politics and culture wars. The public does not want "rampantly political judges," it wants judges who recognize that their job is to distance themselves from the political issues of the day.

[Lee Moore]

Well yes, kinda.

The appearance of impartialty without the substance though is probably worse that bare nekkid partiality. Better to have it in the open.

And getting rid of actual partiality in the judiciary is a loooong road.

[Lee Moore]

But, as I never cease to remind Sarcastro, in the continuing absence of perfect and saintly judges, the best protection against partiality is to structure the law so that they have zero discretion.

In practice, zero is impossible, but what is possible is limiting their room for movement. Sort of in a full plaster cast where nothing can be moved except a toe and an eyebrow. And even that with pain.

[WRD]

Isn't this adjacent to the debate about the judicial oath rolling around the internet a few years ago?

https://dissenting-opinions.simplecast.com/episodes/the-oath/transcript

[Alkali]

Possibly germane here: Canon 5 of the Code of Conduct for United States Judges (set forth in full below) provides that "A Judge Should Refrain From Political Activity." The judges' letter making demands on Columbia seems pretty clearly to be a violation of this Canon.

If Democrats were inclined to play hardball on this political issue — and they are not, because prolonged discussion of the campus protests does not help them — they could seek to strip these judges of their ability to choose their own clerks.

https://www.uscourts.gov/sites/default/files/code_of_conduct_for_united_states_judges_effective_march_12_2019.pdf

Canon 5: A Judge Should Refrain From Political Activity

A. General Prohibitions. A judge should not:
(1) act as a leader or hold any office in a political organization;
(2) make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office; or
(3) solicit funds for, pay an assessment to, or make a contribution to a political organization or candidate, or attend or purchase a ticket for a dinner or other event sponsored by a political organization or
candidate.

B. Resignation upon Candidacy. A judge should resign the judicial office if the judge becomes a candidate in a primary or general election for any office.

C. Other Political Activity. A judge should not engage in any other political activity. This provision does not prevent a judge from engaging in activities described in Canon 4[*].

[* Canon 4 provides, inter alia: "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."]

[Social Justice is neither]

One need only look at the violent actions of the supported students let alone the actions of their terrorist cause to see this not as action against a political cause but an enforcement of good character requirements. Or are theft and intimidation the qualities you demand from a judge?

[Alkali]

As things stand, the judges can hire whomever they like. But making a list of demands on Columbia University is political activity.

[Ed Grinberg]

"One need only look at the violent actions of the supported students let alone the actions of their terrorist cause to see this not as action against a political cause but an enforcement of good character requirements. "
Fully agree. Well put.

[Noscitur a sociis]

As Prof. Kerr noted on Twitter:

A Trump-appointed judge who is active in the Federalist Society and opposes the Columbia boycott writes in with the following.

I’ve hired many Columbia clerks and interns-several of them Jewish-who are open-minded thinkers and talented lawyers. These students aren’t responsible for the madness on campus; they’re among the victims of it. While Columbia has real problems to address, deterring sensible students from attending would make things worse, not better.”

Seems like a fair point!

[Randal]

theft and intimidation

What theft? If you're trying to reclassify trespassing as theft you're a retard.

What intimidation, chanting? That sounds suspiciously like a political cause.

violent actions

The only violent incident of any significance came from a mob of pro-Israel counter-protesters. Obviously, they shouldn't be hired by anyone.

[Sarcastr0]

This seems right.

Judges are important; some members of the public will take their as authoritative regardless.

Just as it's not ideal when celebrities leverage the same effect, judges should not use humans' psychological quirks to their personal or political advantage.

[JonFrum]

So is it wrong for a judge to choose not to hire clerks from Columbia, or is it only wrong for them to be honest and say so? This reminds me of every Supreme Court nominee sitting in front of the Senate and denying that they have any pre-conceived opinions on ANYTHING in order to get approved. Everyone knows that they're lying, and that it's all political theater. Is this any worse than judges lying to the Senate and the American people under oath?

[loki13]

"So is it wrong for a judge to choose not to hire clerks from Columbia, or is it only wrong for them to be honest and say so?"

Hiring clerks is a personal experience. Judges have their own quirks. I am under the belief that there is a judge that will not hire clerks from their school's rival (think, uh, OSU grad not hiring Mich grads). I know that there is a judge that prefers to hire from the state university graduates (not exclusively, but there's always several). Some judges (not all!) prefer to hire clerks that are ideologically aligned with them ... and some judges always try to hire a clerk or two who is not (because they like having the sounding board and debate).

That happens. But yes, for a judge to publicly announce, and attempt to pressure, schools in order to force schools to make changes? That would be improper. I get that you are probably in favor of this effort, but it would be the same if other judges started banding together to try and force BYU or Baylor to change some of their policies. It's wrong for judges to do that.

[Randal]

If only a crew of saner judges would issue a parody press release that they're not going to hire clerks who choose to go to school in red states for essentially the same reasons as cited by Ho.

[Noscitur a sociis]

That would not, in fact, be a positive development!

[loki13]

It would be awesome, and funny, but ...

1. Most judges actually care about these sorts of things, unlike the Ho Trumpistas, and won't stoop to it.

2. Even if that weren't the case, and they did it, parody is lost on ... um, well, you know. So it would just be recycled endlessly by certain news "sources" and the people who repeat it as "evidence" that those judges are biased. Because of course that would happen.

[Randal]

That's certainly true, although I disagree that #2 is a reason not to do it. Attempting to stop feeding the right-wing grievance grift machine is both hopeless and self-defeating. The right-wing grievance grift machine itself is the problem, not the fact that it has material to ingest. It's almost better to be in control of the material, since in a vacuum, they just make stuff up that's worse.

The real question is how to dismantle the right-wing grievance grift machine. The best I've got is to wait it out. The younger generations are savvy enough not to fall for it. (At great cost -- they basically don't believe anything. Still, that's an improvement over believing Fox News.)

[Rev. Arthur L. Kirkland]

This Rudovsky has been calling liberals socialists and communists since he was a fledgling right-wing bigot, and he has been a gay-bashing bigot long after he should have outgrown childhood indoctrination. His disdain for modern, improving-against-his-wishes America makes him a poor candidate to call anyone un-American.

He's just another bitter, disaffected, superstition-addled culture war casualty sucking at the public teat and awaiting replacement.

[SimonP]

If Rudovsky would like to do more to lower the esteem of judges, in the eyes of the public and the bar, then by all means – weigh in on the culture wars. No one will follow you just because you purport to lead.

The Biden administration recently put out a significant regulation that – while widely popular with the public, conservative and liberal – is disfavored by the industries it would regulate. Practitioners are working now to figure out how to adapt to this regulation. Where are they settling? They are ignoring the regulation. Why? Because they know it’ll be challenged in the Fifth Circuit, where it will presumptively be enjoined immediately, enjoined through appeals, and ultimately tossed by the Supreme Court.

We’ve now reached a point in our legal system where duly promulgated, extensively researched regulations issued pursuant to at least arguably valid authority are just ignored, because the outcome of legal challenges at the district, appellate, and Supreme Court levels are all presumptively known in advance by those subject to the regulations. That is a rule of law problem where judges’ thoughts might be welcome. Not this claptrap over how the Columbia protests will somehow lead to a new Holocaust.

[Noscitur a sociis]

The Biden administration recently put out a significant regulation that – while widely popular with the public, conservative and liberal – is disfavored by the industries it would regulate.

What are you referring to?

[David Nieporent]

My guess is that he's talking about the FTC's non-compete ban.

[Noscitur a sociis]

My guess as well, but I want to make sure I’m not misunderstanding.

[Rev. Arthur L. Kirkland]

Rudovsky is a long-time bigot (the type of person who believes superstition improves bigotry or transforms bigotry into something other than bigotry) and disaffected culture war casualty. That point should not be overlooked in this discussion.

[gVOR08]

"(although it's presumably no coincidence that all of the judges who have publicly joined the boycott are Trump appointees)." No coincidence indeed. You guys recognize a clue when you trip over one? What are they auditioning for?

As pointed out above, a judge should recuse from any case touching on a political issue on which he has taken a public stand. Judges cannot take political stands without compromising their job, which is to administer the law without fear or favor.

[gVOR08]

I’m old. I’m old enough I’ve been able watch several cycles of myth building. It seems to always start the same way. Someone alleges X is doing bad thing Y. There is an immediate leap to the moral judgement that that’s terrible, I condemn X over Y!! But skipping over the critical step of asking is X really doing Y and to what extent. Then the partisan media and advocacy groups jump on board for the clicks, and donations, and eventually it’s something “everybody knows”, the proof being that “everybody knows”.

Let me quote from Rick Perlstein’s current newsletter, https://prospect.org/politics/2024-05-08-new-anti-antisemitism-college-protests-gaza/. After noting that the protest encampment at the University of Chicago “enjoyed a gorgeous twilight “Mimouna,” a rite celebrated by the Maghrebi Jews of North Africa during Passover.” Perlstein says.
“Sure, offensive things have happened to protesters. And that’s awful. But when I told some Chicago neighbors about all the Judaism going on down in Hyde Park, they were frankly shocked to hear it: They watch Morning Joe, from which they got the impression that Jew-hate was the overwhelming leitmotif of this whole protest thing.

It suggests one of those Talmudic puzzlements, or perhaps the setup for a dad joke: How many Jews have to pray peacefully in a pro-peace encampment (or alternatively, to cite a scene witnessed outside the 116th Street gate of Columbia University, how many black-hatted ultra-Orthodox Jews have to chant, “Anti-Zionism is not antisemitism”) for them to stop being an antisemitic mob?”

Perhaps the situation at Columbia is more complicated than Judges Rudovsky and Ho care to recognize.

[Noscitur a sociis]

One of the great developments in modern American history is that naked antisemitism is no longer socially acceptable. That means that even some pretty out of it antisemitsm realize they sometimes need to put up at least a tissue-thin pretense of deniability. It's not unlike Dr. Ed pretending he's "warning" us about how commenters who disagree with him are going to be lynched and illegal immigrants are going to be mowed down with machine guns instead of fantasizing about it. And it's about equally convincing.

Perhaps the situation at Columbia is more complicated than Judges Rudovsky and Ho care to recognize.

Again, I disagree with Judge Ho's way of addressing the problem. But the nature of the problem is about as clear-cut as these things get.

[Randal]

But the nature of the problem is about as clear-cut as these things get.

The nature of the problem may be clear-cut, but is the existence of the problem clear-cut? It looks to me like a couple of isolated incidents are being amplified to tar the whole protest, along the lines that gVOR08 is suggesting. It’s not unlike how the George Floyd riots were used by right-wing media to convince their audience that blue cities were becoming crime-ridden hellholes in general. Fox News even photoshopped armed vigilantes into benign pictures of Seattle!

[Noscitur a sociis]

The nature of the problem may be clear-cut, but is the existence of the problem clear-cut?

Yes.

Thanks for subbing for Dr. Ed on this round of SAtEQs!

[Randal]

Unlike Ed II, I don’t hide from evidence. I’ve been on the lookout. If you have some that rises to more than just isolated incidents, please, I’d love to see it.

What I’ve seen instead is a lot of people attributing to antisemitism what can be attributed to pacifism. College kids are notoriously pacifist. They aren’t notoriously antisemitic.

[David Nieporent]

How many Jews have to pray peacefully in a pro-peace encampment

Do you mean Jews or Asajews?

[Randal]

That sounds like an antisemitic slur. Asajews. If I google that will I end up on a watchlist?

[Longtobefree]

Is it wrong for a judge to say they will not hire white supremacist clerks?
Is it wrong for a judge to say they will not hire BLM members as clerks?
Is it wrong for a judge to say they will not hire pro-life clerks?
Is it wrong for a judge to say they will not hire pro-abortion clerks?
Is it wrong for a judge to say they will not hire John Galt?

[Estragon]

Is it wrong for a judge to take his oath of office in a private nazi memorabilia museum?

[Rev. Arthur L. Kirkland]

If you think any of the Volokh Conspirators (who suck avidly at the Federalist-Heritage-Republican-Hoover-National Policy-Family Research teat funded by Harlan Crow) or their fans have the courage or character needed to answer that question, I have a transcript from the Kristi Noem-Kim Jong Un meeting you might wish to purchase.

[Old Smokin' Egg]

I've got to agree with Prof. Kerr on this one. Indeed, I'd say that judges have a positive obligation not to opine on hot political topics.

The problem is that once one accepts Rudovsky's position, there's no place to draw a bright line beyond which judges' political activity shouldn't go. Grant them the right to speak out against Naziism, and we've tacitly admitted that they have the right to promote their positions on transgender athletes, immigration restrictions, abortion, and just about anything else. And once they do so outside of the courtroom, can we believe—and can the losers in the cases that they hear believe—that they put their activism on hold when they don the robe?

Moreover, forming the habit of refusing to take political stances when they're off the clock can help them maintain their impartiality when on the bench. Practicing disinterestedness at all times is better than having to switch identities when entering and leaving the courtroom.

[Aubrey LaVentana]

"on this one. Indeed, I’d say that judges have a positive obligation not to opine on hot political topics."
Extend that to include universities.

[rloquitur]

Judges suck. They allow all sorts of abuses (guardianship, for example). They issue bogus warrants with impunity etc. They tolerate the government pulling some shady shit.

Clean up the bench first.