"Federal Judges Receive Life Tenure—Not a Life Sentence"

"Public criticism is not for everyone. But if it's too much to take, you can always resign."

From Judge James Ho's concurrence Friday in Pittsburgh Logistics Sys., Inc. v. Glen Rose Transp. Mgmt.:

I write separately to address Plaintiff's understandable objections to the magistrate judge's ex parte meeting with Defendant. After all, ex parte meetings are "strongly disfavored" and "often reversible error," as our court rightly observes today.

I get why the magistrate judge felt compelled to engage in an ex parte dialogue, after he received a series of unusual emails from Defendant's corporate representative. It's no fun being criticized for one's life's work.

But "[h]olding office in America is not for the faint of heart." "With leadership comes criticism—whether from citizens of public spirit or personal malice."

[I.] Defendant's corporate representative sent a series of ex parte emails to the magistrate judge. The emails expressed frustration with perceived excessive and unnecessary delays in the judge's resolution of the case.

One of those emails referenced the fact that "I have many friends who are … Texas congressmen, US representatives, and one close U.S. Senator," and that the corporate representative was "consider[ing] asking my Texas friends to write to you and ask why I have to continue waiting."

The email was sent at a time when it was publicly known and reported by the media that the judge was actively being considered and promoted in certain circles for appointment to the district court.

So the message—intended or not—was an indictment on the judge's honor. It was effectively an accusation—fair or unfair—that the judge might be willing to use his rulings to further his own personal career ambitions.

In response, the magistrate judge held an ex parte meeting with Defendant's corporate representative.

[II.] Any judge who abuses his office to promote his own interests—including the desire for future appointment—has violated the judicial oath and doesn't belong in his current post, let alone whatever new post he seeks.

There are, to be sure, both honorable and dishonorable people on the bench—just as there are in every other segment of life. Just as there are no doubt those on the bench who have strong ambitions for future office, there are others who are happy to be public servants, but who would be just as happy earning their living by some other means.

For the outside observer, however, it can be difficult to discern which is which.

And therein lies the quandary for the dutiful judge. How should a good judge respond when it's suggested that his exercise of judicial authority might be tainted by his private, personal desire for elevation to another post?

One noted scholar has described this dilemma as "the audition trap." Josh Blackman, The Audition Trap, Reason.com, Mar. 7, 2025. As Professor Blackman explains, "[a]t bottom, this is a charge of bad faith: that we write what we write not because we think it is the right legal outcome, but that we are using our platforms to seek some higher office."

He calls it a "trap" because it's a claim that "cannot be refuted." "Once a person is labeled as an auditioner, everything they do will be seen as an attempt to audition. If they act in a moderate fashion, they are doing so to avoid drawing attention, and helping their candidacy. If they act in a radical fashion, they are doing so to draw attention, and help their candidacy. Auditioners are trapped in a vicious cycle."

[III.] Professor Blackman's point is simple, but important. No one has the power to look into another man's heart and ascertain his actual motivations or ambitions. So the accusation of auditioning is indeed irrefutable. Certain actions may seem like auditioning to some, but to others, it's simply doing the job as the judge best sees fit.

There's no solution. So the good judge simply accepts that criticism is a fact of life—and that unrebuttable charges come with the job. The First Amendment guarantees the right of every citizen to criticize public officials—whether the criticism is fair or unfair.

That doesn't make unjust assaults on one's honor any easier to accept, of course. No one likes to be booed. It's not unreasonable that a good judge might care about his reputation for fairness, neutrality, and integrity. But caring deeply is the cost of admission to a meaningful and textured life.

Public criticism is not for everyone. But if it's too much to take, you can always resign. Federal judges receive life tenure—not a life sentence.

[IV.] I have no reason to doubt the sincerity of Defendant's corporate representative. Delays in the justice system are real, commonplace, and frustrating.

Nor do I have reason to doubt the sincerity of the magistrate judge. Frustrating too is the irrefutable accusation that one's rulings are hopelessly tainted by personal ambition.

But here, the magistrate judge chose to vent that frustration at an ex parte meeting with Defendant. On a human level, I can sympathize. But I wouldn't have counseled such a response.

At the end of the day, the only thing a good judge can do is articulate the governing principles that decide the case, and endeavor to apply those principles consistently in all such cases, without fear or favor or regard to personal consequences. And then just let his record over time speak for itself.

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"Those who seek office should not just expect criticism, but embrace it. Tough scrutiny is not a bug, but a defining feature of our constitutional structure. In America, we trust our citizens to determine for themselves what is right—and to count on vigorous, unrelenting debate to guide them."