The Curmudgeonly Clerk points this out, and it seems to me that he’s right. Here’s what the New York Sun reports about Judge Calabresi’s comments to the American Constitution Society (the liberal counterpart to the Federalist Society):
The 71-year-old judge declared that members of the public should, without regard to their political views, expel Mr. Bush from office in order to cleanse the democratic system.
“That’s got nothing to do with the politics of it. It’s got to do with the structural reassertion of democracy,” Judge Calabresi said.
Here’s what Code of Judicial Conduct Canon 7 says:
A. 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;
(3) solicit funds for or pay an assessment or make a contribution to a political organization or candidate, attend political gatherings, or purchase tickets for political party dinners, or other functions.
B. A judge should resign the judicial office when the judge becomes a candidate either in a primary or in a general election for any office.
C. A judge should not engage in any other political activity; provided, however, this should not prevent a judge from engaging in the activities described in Canon 4.
Seems to me that if Judge Calabresi’s remarks were accurately paraphrased — a big if, I realize — they were a judge’s “publicly . . . oppos[ing] a candidate for public office.” Calling on “members of the public” to “expel” an officeholder who’s up for reelection certainly sounds like publicly opposing a candidate for public office. (Canon 4 does let a judge say various things related to “the law, the legal system, and the administration of justice,” but as I read Canon 7, the prohibitions in 7(A) and 7(B) are absolutely, and only the prohibition in 7(C) is subject to the Canon 4 exception.)
It’s possible (though far from certain) that, given the Supreme Court’s decision in Republican Party v. White (2002), that Judge Calabresi can claim his speech is protected by the First Amendment, notwithstanding Canon 7. Nonetheless, even if Canon 7 can’t be legally binding for that reason, it is (as I understand it) a pretty authoritative ethical judgment about how judges should behave, and thus an important ethical constraint. It seems that the comments at the American Constitution Society meeting transgressed that constraint.
Note, though, that this of course assumes that Judge Calabresi was correctly paraphrased. Subtle differences in his precise words might well make for substantial differences in the legal analysis. If anyone has a tape or transcript of Judge Calabresi’s remarks, or can even pass along his personal recollection, I’d love to hear about it.
(This, of course, is an entirely separate criticism from the one I mentioned here.)
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