Thursday, March 12, 2020

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

By Josh Blackman - March 12, 2020 at 12:38PM

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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