Wednesday, March 11, 2020

Judge Adelman defends his criticism of Chief Justice Roberts and President Trump

By Josh Blackman - March 11, 2020 at 02:43PM

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.

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.


[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.

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