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Should Condemning Affirmative Action Disqualify You from Membership on a State Judicial Conduct Commission?

The New York State Commission on Judicial Conduct has censured Commission Chair Raoul Felder for cowriting (with Jackie Mason) a book called Schmucks! Our Favorite Fakes, Frauds, Lowlifes, Liars, the Armed and Dangerous and Good Guys Gone Bad, and is "exploring [its] options in terms of removing him as Chair." Here's the Commission's reasoning:

Much of the material in this book, and the work as a whole, undermine the appearance of impartiality, and the dignity and probity that is required of the Commission and its Chair. Although the book purports to be a work of humor, much of it is crude, biased, vulgar and otherwise demeaning. For example, we note the following.

  • The book repeatedly invokes racial, ethnic and religious invective. Such statements are inconsistent with the Commission's role in enforcing the judicial obligations to refrain from words or conduct that manifest bias based on race, religion or national origin, and to require court employees and lawyers to refrain from such conduct.

  • The book asserts that "anytime you hear the word 'allegedly,' you can bet it's true." Such a viewpoint is untenable from a Commission member whose role is to evaluate allegations of judicial misconduct and identify those that have merit.

  • The book claims that "nothing in our country is more insidious than affirmative action." Such a sentiment raises a reasonable perception that the speaker could not pass fair judgment on anyone he perceived to have benefited from affirmative action.

Appointed government officials are not shielded by the First Amendment from removal the way citizens are shielded by the First Amendment from criminal punishment or civil liability. High executive branch officials who serve at a President's or Governor's pleasure may be fired for their speech, even if that happens only because the President or Governor thinks the speech is inconsistent with his agenda. (Some states may constrain the Governor's removal power, but that would be under state law, not the First Amendment.) Likewise, other officials might be subject to removal for speech that is seen as inconsistent with their official roles. Also, while there is some uncertainty about this, it may well be that censure ought not be seen as a speech restriction, but merely the censuring body's own attempt to speak and participate in the marketplace of ideas. I do not want to argue that the Commission's action is unconstitutional, and as to the first two grounds it might even be meritorious (though much would depend on the details of what the book said).

But I'm quite troubled by the theory that criticism of affirmative action — even somewhat overstated criticism (I'm sure something in our country is more insidious than affirmative action) — should be seen as casting doubt on the person's fitness to serve on a judicial conduct commission, or as the judicial conduct commission's chair.

The argument that "[s]uch a sentiment raises a reasonable perception that the speaker could not pass fair judgment on anyone he perceived to have benefited from affirmative action" doesn't fly. If someone says "nothing in our country is more insidious than race discrimination," does that disqualify the person, on the theory that he couldn't pass fair judgment on anyone he perceived to have benefited from racial discrimination? If someone condemns the insidiousness of legacy preferences in admission, does that disqualify the person, on the theory that he couldn't pass fair judgment on anyone he perceived to have benefited from legacy preferences?

If someone condemns the insidiousness of corporate welfare or farm price supports, does that disqualify the person from being a judge, on the theory that he couldn't pass fair judgment on people or corporations that were seen as benefiting from these programs? (I take it the Commission wouldn't want there to be "a reasonable perception that the speaker could not pass fair judgment on anyone he perceived to have benefited [from the condemned program]" as to judges as well as to the chair of the Commission on Judicial Conduct.) If someone condemns the insidiousness of abortion, does that disqualify the person, on the theory that he couldn't pass fair judgment on women who have gotten abortions?

Surely not: We assume that people who disapprove of programs are nonetheless able to fairly decide factual and legal questions raised by people who happen to be beneficiaries of the programs; otherwise, nearly no-one would be eligible for judicial or quasi-judicial office. Why would affirmative action be a sacred cow to which this assumption doesn't apply?

I speak here of the Commission's statement and its reasons for the statement; perhaps the book's discussion of affirmative action deserves censure, but I'm relying on the Commission's defense of its own position, which strikes me as quite unpersuasive.

Thanks to David Giacalone for the pointer.

logicnazi (mail) (www):
Yes, this is the sort of crap that drives me mad. Using the pretense of some other generally applicable qualification they punish someone for having the 'wrong' sorts of policy ideas. Admittedly there are times when having sufficiently wrong policy ideas should be grounds for disqualification, e.g., favors genocide. However, one should just be honest about removing him for having unacceptable policy preferences. It makes me wonder if the reason for the pretense is that the commission realizes that these views are sufficiently mainstream that it would cause a fuss to say openly they felt they were sufficiently onerous so as to warrant taking this guy's job.

It makes me particularly mad when they blame someone for simply saying what everyone else knows and believes but won't say. In the media the world 'allegedly' is almost always a weasel word that means 'we know but are afraid of getting sued.' When the media genuienly thinks it isn't clear they tend to use 'accused' or other words.

Finally I find the implicit double standards about what counts as religious invectives particularly hypocritical and unfair (the racial double standards at least have some justification). Expressing your deeply held belief that people not of your religion are going to hell (and implicitly that they deserve it) is acceptable while expressing your sincerely held belief that people who aren't atheists are being dumb or unquestioning sheep is viewed much more negatively.

Of course if these were mean spirited insulting attacks rather than mere observations and personal belief then my opinion changes. Moving from your beliefs about religion to personally calling someone an idiot or going from abstract beliefs about gays and hell to insultingly calling them a sinful fag crosses a line.
4.18.2007 3:44am
MnZ (mail):

The book claims that "nothing in our country is more insidious than affirmative action." Such a sentiment raises a reasonable perception that the speaker could not pass fair judgment on anyone he perceived to have benefited from affirmative action.


Eugene, I believe the technical term for this is psychological projection.
4.18.2007 5:10am
SHG (www):
The assumption of a judicial or quasi-judicial position demands a level of discretion that will avoid the taint of the appearance of impropriety. Every judge knows this. Every lawyer should know this. Raoul Felder most certainly knew this.

The vote of no confidence is not a condemnation of his positions per se, but a condemnation of his exceptionally poor judgment in allowing his ego to overcome his judgment. Regardless of what he believes, he should know better than to put his name to the public expression of his beliefs while chairing the judicial conduct commission.
4.18.2007 7:29am
A. Zarkov (mail):
The New York State Commission on Judicial Conduct: schmucks.
4.18.2007 7:41am
David Maquera (mail) (www):
Spare me the sanctimony, SHG. The only reason why Raoul Felder was censured is because from what I can tell from various reviews of his book, Mr. Felder went after the liberals' "sacred cows" and did so in a humorous fashion.
4.18.2007 7:49am
David Maquera (mail) (www):
Frankly, if I was Mr. Felder, I would hold a press conference and 1) tell the Commission to shove the chairmanship where the sun doesn't shine and 2) announce that a new book will be forthcoming about the members of the Commission in the same vein as "Schmucks!"
4.18.2007 7:51am
Richard Aubrey (mail):
It's one thing to make a legal argument completely sans passion.
It's another to make the same point by ridiculing the other side.
Clearly, if the other side is in charge of your career, you may have a problem.
Let's call this a matter of judgment having nothing to do with legal issues.
4.18.2007 8:31am
Fub:
The dead giveaway that this "statement" is really just a three page PC screed composed by morally obtuse fools to rationalize their own foolishness is that it spends two and a half pages straining to explain why it isn't.
4.18.2007 10:39am
Richard Nieporent (mail):
It appears that the book's title hit too close to home.
4.18.2007 10:48am
david giacalone (www):
Would making a strong public defense of affirmative action raise "a reasonable perception that the speaker could not pass fair judgment" against anyone s/he perceived to have benefited from affirmative action? Who are more likely to apply the same standard to each and every accused person: those who want justice to be truly "blind" [including colorblind] or those who believe certain groups need special help or protection?
4.18.2007 11:03am
TaxLawyer:
The books statement that"anytime you hear the word 'allegedly,' you can bet it's true." is more than sufficient grounds for removal from a body the purpose of which is to judge the accused impartially.

Imagine if that were stated by a US district judge, or by a juror in voir dire, or a North Carolina district attorney (oh wait, that actually happened).

So while the rest of the grounds may be misguided, let's not pretend an injustice is being done here.
4.18.2007 11:32am
John (mail):
The affirmative action "argument" proves way too much, for it would apply to anyone holding any view whatever on an issue of social policy. Examples:

1. You oppose government confiscation of various firearms; Such a sentiment raises a reasonable perception that the speaker could not pass fair judgment on anyone he perceived to have benefited from unconfiscated firearms (e.g., by acting in self defense).

2. You favor limits on abortion; Such a sentiment raises a reasonable perception that the speaker could not pass fair judgment on anyone he perceived to have benefited from an abortion.

3. You favor affirmative action; Such a sentiment raises a reasonable perception that the speaker could not pass fair judgment on anyone he perceived to have benefited from not having received affirmative action.

And so on. The result is that no one is fit to serve on this commission.
4.18.2007 12:24pm
Hans Bader (mail):
The Commission's idea that opposition to affirmative action means you can't be fair to minorities is just plain stupid.

Opposition to affirmative action is protected by the First Amendment. See, e.g., California Department of Corrections v. State Personnel Board, 69 Cal.Rptr.2d 34, 59 Cal.App.4th 131 (Cal. App. Third District 1997) (even intemperate diatribe was protected).

The late Stanley Mosk, one of the longest-serving California Supreme Court Justices, vociferously opposed affirmative action in his opinions (as in the Bakke, Price, and DeRonde cases), calling it a pernicious form of the "new racism" in one of his dissents, but he was also was a trail-blazer in enhancing judicial protection for minorities in employment, jury selection, and real estate transactions, and had minority law clerks and employees.

I worked on the Gratz and Grutter cases challenging affirmative action, one of which invalidating a college affirmative action policy and the other of which upheld one.

But I have had minority clients with successful outcomes. See, e.g., United States v. Morrison, 529 U.S. 598 (2000) (invalidating law under which my African-American client was sued under the Commerce Clause).
I have minority relatives (both by marriage and by blood), and about a fifth of the guests at my wedding were minorities.

By contrast, there have been pro-affirmative action Supreme Court justices who managed to hire few if any black employees while operating law firms in predominantly black cities, such as Washington, D.C., or were not comfortable around minorities.

I agree that the murkiness of the First Amendment as applied to appointees to an influential commission would probably bar Felder from obtaining damages for his dismissal based on the doctrine of qualified immunity.

But I am not sure it would bar him from seeking injunctive relief to reinstate him to his position, since he may well not fall within the policy-making exception to the First Amendment for high-level state officials recognized in the Elrod-Branti line of cases.

The Fourth Circuit held that the First Amendment was violated by removing someone from an unpaid appointive position.

Moreover, even if Felder's speech could somehow be deemed "disruptive," which it logically cannot, under the Second Circuit's first decision in Locurto v. Safir, he still couldn't be fired if it were a pretext for suppressing his politically incorrect viewpoint.

The whole brouhaha reminds me of the New Jersey Supreme Court Chief Justice's foolish banning of the producers of "Bonfire of the Vanities" from a courthouse where they had contracted to film, in order to avoid any imaginary "perception" of bias by the judiciary.

Federal district judge Nicholas Politan found that to be a violation of the First Amendment, and an "egregious violation of the bulwarks against government tyranny."

But the Third Circuit overturned the judgment on a technicality, since the wrong party sued as plaintiff, without reaching the merits of whether the First Amendment was violated.

Too bad. If it had reached the merits, it might have put to rest the idea that the First Amendment can be trashed based on fanciful notions about how protected speech may influence public perception of the judiciary.
4.18.2007 2:46pm
Charlie (Colorado) (mail):
(I'm sure something in our country is more insidious than affirmative action) ....

In fact, I'd say that censuring a judge for writing about a policy position with which a commission like this disaagrees is an example.
4.18.2007 3:17pm
jonah gelbach (mail) (www):
for an example of this sort of thing from the other side of the political spectrum, consider the case of arkansas judge wendell griffen. judge griffen gave a speech in which he criticized the war in iraq. here's James A. Badami, executive director of arkansas's Judicial Discipline and Disability Commission:

"If you are a staunch Republican and a Bush supporter and have to come before this judge," Mr. Badami said, sounding exasperated, "and this judge has now said some terrible things about Bush and the Bush administration — and now those people are having to appear before him?"


To read more, check out monday's nyt sidebar column by adam liptak.
4.18.2007 5:31pm
Brian K (mail):
So it's okay to fire AUSA's for politcal reasons, but it's not okay to censure a commission chair for political reasons? It's okay to prevent government scientists from speaking out about global warming and to fire them when they do, but its not okay to censure someone for speaking out against affirmative action?
4.18.2007 7:07pm