Archive | Judicial Conduct

Frivolous Ethics Complaint Against Judge Sykes Dismissed

Last month, Rep. Louise Slaughter, Common Cause, and the Alliance for Justice filed an ethics complaint against Judge Diane Sykes of the U.S. Court of Appeals for the Seventh Circuit claiming that she had violated the Code of Conduct for federal judges by speaking at the annual dinner of the Federalist Society.  A similar complaint, in the form of a letter to the Chief Justice, was lodged against Justice Clarence Thomas who also spoke at this year’s convention dinner.  This complaint is one of a series of frivolous ethics charges made against conservative jurists over the years, including prior complaints about judges or justices speaking at annual dinners of right-leaning organizations or claims that conservative justices need to recuse themselves from high-profile cases because they or their relatives are conservative.  The complaining groups claim to have a non-partisan concern for judicial ethics, and yet never complain when liberal justices engage in precisely the same conduct.

On December 5, the Seventh Circuit’s Chief Judge, Diane Wood, dismissed the complaint against Judge Sykes.  Judge Wood ‘s opinion made quick work of the charges, concluding that “the allegations in the Complaint ‘lack any factual foundation or are conclusively refuted by objective evidence.'”  She further noted that judges speak to equivalent gatherings of lawyers all the time without anyone raising a fuss.  I would like to think this opinion would put an end to the filing of frivolous and partisan ethics complaints of this sort, but I would not bet on it.

(HT: Carrie Severino) [...]

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Chief Judge Kozinski on His Critics

David Lat has a report on a recent talk that Chief Judge Alex Kozinski gave at Yale Law School. It sounds like it was quite an interesting event, as almost all Kozinski events are. And for those readers who remember my post last month about the oral arguments in United States v. Maloney, Lat reports:

I asked Chief Judge Kozinski about one of our favorite oral arguments here at Above the Law — the en banc argument in United States v. Maloney, in which a federal prosecutor got so badly benchslapped that the government ended up confessing error.

I asked the judge whether he had anything to say to critics of the benchslapping like Professor Will Baude, who questioned the propriety of appellate judges urging the government to confess error. Chief Judge Kozinski said:


I say: “Fair enough!” Lat goes on to speculate:

Why such a curt response? It would appear that the judge doesn’t want to suffer the fate of La Shira: because the government’s motion to summarily reverse the conviction is still pending, the case remains active and he cannot comment on it. (This makes me wonder whether the Ninth Circuit might actually chastise the government in writing in the course of granting the motion, instead of just sweeping the possible prosecutorial misconduct under the rug by granting the motion without comment, as Professor Baude assumed.)

I’d be pleased and amused if this turns out to be true, but I confess that I rather doubt it. I suspect that the court will not chastise the government in the course of granting the motion, and I suspect Kozinski’s curt response was because he thought the criticism sufficiently wrongheaded not to be worth responding to. [...]

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Are Conservative Judges Better? Evidence from Geoff Stone

Prof. Geoff Stone argues that conservative Supreme Court justices are more ideologically inflexible and less meritocratic than their liberal counterparts. His evidence for this is that

Of the 20 law clerks appointed this Term by the five conservative Justices — Roberts, Scalia, Kennedy, Thomas and Alito, 18 of the 20 — or an astonishing 90 percent — clerked last year for a Republican-appointed judge. Of the 16 law clerks appointed this Term by the four more liberal Justices — Ginsburg, Breyer, Sotomayor and Kagan, only 9 of the 16 — or 56 percent — clerked last year for a Democratic-appointed judge.

I would not rest any theory on this information, but if I would, it could easily support quite different explanations.

1) Given that the court picks clerks every year, data from one year is not very interesting; there are no doubt fluctuations. Any serious discussion of the issue would require looking across a period of year. I understand Stone may not have wanted to this – any more than I do – but then it is probably not fair to say one year’s hiring “shows” anything. Prof. Brian Leiter surprisingly calls this “hiring patterns,” but I don’t see how one year can be a pattern.

Indeed, the numbers Stone cites sound impressive in terms of percentages, but are really just a difference of a few clerks. Stone admits this is just a “tidbit,” but then goes on to say it “reveals… what is really going on.”

2) Now assuming this “pattern” is true, one possible explanation is that there is more conservative-to-liberal drift on the bench than vice versa. Thus there are more Republican-appointed judges with liberal tendencies than vice-versa.

3) Perhaps Stone should have called his article “The difference between conservative and liberal JUDGES.” The relatively [...]

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The Strange Career of Judge Gary Kreep

Last year here in San Diego, we had a funny judicial election for a local Superior Court judgeship. The two candidates were Gary Kreep and Garland Peed, and at the time their names caught my eye not only for the obvious juvenile reasons, but because Peed listed his career as a prosecutor, and Kreep described himself as a “constitutional law attorney.” It turned out that Kreep was a high-profile “birther” who had questioned Barack Obama’s eligibility to the office of President of the United States. It also turned out that Kreep won, by a very narrow margin.

There was a lot of concern from the left about what Kreep would do on the bench — see for example this letter by the San Diego NAACP. And since Kreep has been on the bench he has indeed been controversial — but not for the reason some people were expecting. It seems that he upset the local prosecutors office by ruling against them too often. The San Diego Union Tribune reports:

San Diego Judge Gary Kreep, a conservative legal activist who led a failed fight to challenge President Obama’s citizenship, has been exiled to traffic court after several Superior Court rulings favoring defendants’ constitutional rights.

Kreep, 63, was reassigned on Sept. 9 from the downtown San Diego courthouse to a Kearny Mesa facility that handles traffic offenses and small claims.

The move came after prosecutors from the City Attorney’s Office began to boycott his courtroom over his legal approach.

For instance, Kreep often declined to take away a defendant’s 4th Amendment rights against search and seizure — something prosecutors can legally request at various points during the criminal process.

Apparently Kreep earned the ire only of prosecutors. The Public Defender’s office, which handles the majority of the cases in Kreep’s

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Criminal Contempt Punishment for Trial Judge’s “Inflammatory” Speech in Judicial Opinion?

I blogged about this case when such punishment was imposed, but yesterday the Third Circuit reversed (In re Kendall (3d Cir. Apr. 3, 2013)):

After the Virgin Islands Supreme Court issued a writ of mandamus in a criminal case presided over by former Superior Court Judge Leon A. Kendall, he published an opinion chastising the mandamus decision and recusing himself from the case due to alleged prosecutorial misconduct. The Justices cited Kendall for criminal contempt and eventually found him guilty because his opinion, in their view, obstructed the administration of justice and because his recusal was pretextual in that he sought to avoid complying with the writ of mandamus.

Kendall asks us to reverse his convictions. He argues that his judicial opinion is protected by freedom of speech and cannot therefore serve as a basis for criminal contempt. As to that novel question, we hold that the First Amendment protects a sitting judge from being criminally punished for his opinion unless that opinion presents a clear and present danger of prejudicing ongoing proceedings. Kendall’s opinion did not pose such a threat. We also agree with Kendall that there is insufficient evidence that his recusal was pretextual. Consequently, we will reverse the Virgin Islands Supreme Court’s judgment and vacate all of Kendall’s contempt convictions….

[D]oes the government’s broader authority to discipline attorney speech about ongoing proceedings also permit the government to hold a judge in criminal contempt for his speech about ongoing proceedings? We answer that question with a resounding “No.” Criminal contempt is no mere disciplinary tool. It derives, like all crimes, from a government’s power as sovereign. Because the government’s use of the criminal-contempt power is the sine qua non of a sovereign act, the government has no greater authority to hold someone in criminal contempt for

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“It Ain’t Pretty and We Should Not Pretend That It Is”

The broader context, from the dissent in In re Michels (N.Y. Comm. on Jud. Conduct Nov. 17, 2011):

As a Commission, our duty is to respect both the First Amendment and the quandary this system imposes upon judicial candidates. It ain’t pretty and we should not pretend that it is. Therefore, we should give every judicial candidate the benefit of the doubt when there is any margin to do so. That’s the least the First Amendment demands and the least we can do to be fair to the judges who face this unenviable process which is necessary to ply their idealistic, supremely difficult trade.

The decision involves an interesting and difficult question of the permissible scope of restrictions on misleading candidate speech in judicial campaigns; those interested in the subject should check it out. [...]

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May Judges — Elected in Partisan Elections — Chair Political Caucuses?

This question is part of the general matter of the First Amendment rights of elected judges who are required to be political and yet expected to be in certain ways apolitical; In re Young (N.Y. Comm’n on Judicial Conduct Oct. 7, 2011) has a long discussion in a concurrence that says New York’s elected trial courts judges do have a First Amendment right to engage in such political activity, and a brief statement in the majority opinion condemning such behavior. [...]

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Trial Judge Publishes Opinion With “Inflammatory” Criticism of Higher Court — Higher Court Finds Judge to Be in Criminal Contempt

That’s what happened in In re Kendall (V.I. Oct. 12, 2011); here’s the offending opinion by the trial judge. The criminal contempt finding is also partly based on the trial judge’s decision to recuse himself from the case, which the higher court said was based on the judge’s desire to avoid following the higher court’s orders rather than on a genuine sense that he had some bias that would justify recusal. The sentencing hearing will come later. [...]

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Rates of Unpublished Opinions in the Different Circuits — And Especially the Fourth Circuit

I recently came across a new Fourth Circuit decision on a very interesting legal question addressed in an unpublished decision. In United States v. Makwana, the Fourth Circuit considered the proper interpretation of one of the provisions of the United States Sentencing Guidelines — §2B1.1(b)(14)(B)(i) , which gives a sentencing enhancement for an offense that substantially jeopardized the safety and soundness of a financial institution — to a hacker who had programmed malicious code into a Fannie Mae computer and was caught before the code was executed. As far as I know, there was no caselaw on this question at all; this case is the first in which the the issue has arisen. In reading over the opinion, I was struck by a sense of deja vu: Here was a Fourth Circuit opinion on a novel and interesting question of law, and yet the judges had for some reason decided to issue the opinion as an “unpublished” decision — that is, a decision that is not binding precedent in the circuit. I’ve encountered this often over the years. The Fourth Circuit seems particularly reluctant to issue published opinions.

I decided to look for some real numbers, and I found this chart on the rates of unpublished opinions by circuits from 9/2009 to 9/2010. Here are the numbers listed from the highest percentage of unpublished decisions to the lowest:

Circuit/Percentage of Opinions that are Unpublished
4th Circuit/ 93.0%
3rd Circuit/ 89.8%
11th Circuit/ 89.6%
2nd Circuit/ 88.3%
5th Circuit/ 87.4%
9th Circuit/ 86.9%
6th Circuit/ 83.6%
10th Circuit/ 77.5%
8th Circuit/ 71.8%
1st Circuit/ 65.1%
DC Circuit/ 62.3%
7th Circuit/ 59.8%

According to the chart, the Fourth Circuit is the least likely to issue published opinions. Last year, only 7% of 4th Circuit opinions were published.

The obvious question [...]

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Is it Unethical for Judges to be Facebook “Friends” With Lawyers who Appear Before Them?

As co-blogger Eugene Volokh notes, the Oklahoma Judicial Ethics Advisory Panel recently issued an opinion holding that it is unethical for judges to be Facebook “friends” with lawyers who appear before them. Back in 2009, I criticized a similar opinion issued by the Florida Judicial Ethics Committee:

At first glance, it might seem as if the opinion reflects a generational divide. The older members of the Committee may simply not understand how Facebook and other social networking sites work, and therefore don’t realize that a Facebook “friendship” doesn’t necessarily signal any kind of close relationship. Indeed, many Facebook friends don’t know each other in the real world at all…..

The problem goes deeper than that, however. As far as I know, both Florida and most other states don’t forbid judges to be real-world friends with lawyers who may appear before them. A judge who shows favoritism to a lawyer who is a personal friend may be sanctioned….. But the mere existence of a friendship between lawyer and judge is not considered to be a violation of judicial ethics in and of itself. So the Florida Committee’s approach actually treats Facebook friendship between lawyers and judges as a more serious breach of judicial etiquette than a genuinely close friendship between the two. I could understand the logic of a rule that forbade all social fraternization between judges and lawyers who might appear before them….. But I can’t understand the justification for a rule that bans essentially innocuous Facebook “friendships” but turns a blind eye to real friendships.

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“Humor is the Pepper Spray in the Arsenal of Persuasive Literary Ordnance”

“It is often surprising, disarming and, when delivered with precision, highly effective.” So writes Chief Judge Alex Kozinski, in an order dismissing a complaint of judicial misconduct against (apparently) Magistrate Judge Edward Chen. Here’s the full order:

A pro se litigant charges that a judge made public comments that violated the Code of Conduct for United States Judges. She alleges that, after the September 11, 2001 attacks, the judge gave a speech in which he stated he “had a sickening feeling in [his] stomach about what might happen to race relations and religious tolerance” and that the “[c]riminalization of immigration laws” constituted “[i]nstitutionalized racism.” Complainant also alleges that, in another speech, the judge “criticized [a senator’s] work in trying to investigate campaign finance controversies involving [two individuals], both of whom eventually pled guilty to felony campaign finance law violations.” (First two alterations in original).

A judge does not check his First Amendment rights at the courthouse door, to be reclaimed at the expiration of his judicial tenure. See generally Leonard E. Gross, Judicial Speech: Discipline and the First Amendment, 36 Syracuse L. Rev. 1181 (1986). The Code of Conduct encourages judges to “speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice.” Code of Conduct for United States Judges Canon 4. Engaging in such law-related activities — including speeches that comment on current events and legal developments — is permitted not only because judges are citizens, but because they are particularly knowledgeable on such topics. Their speech may thus enhance the public discourse and lead to a more informed citizenry. Here, the complaint alleges that the judge expressed his thoughts on racial and religious tolerance post-9/11, the direction of immigration law and a campaign finance controversy. These comments fall

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Do Daughters Influence Judges?

David Zaring links to the abstract of an interesting study that suggests judges who have daughters rule differently in cases involving “women’s issues.”  Here’s the abstract:

Social scientists have long maintained that women judges might behave different than their male colleagues (e.g., Boyd et al. (2010)). This is particularly true when it comes to highly charged social issues such as gender discrimination, sexual harassment, and the status of gender as a suspect classification under federal law. Less studied has been the role that a judge’s family might have on judicial decision making. For example, we may think that a male judge with daughters might have different views of gender discrimination and sexual harassment than a male judge without any daughters. This paper takes a look at the question causally by leveraging the hypothesis that, conditional on the number of total number of children, the probability of a judge having a boy or a girl is independent of any covariates (Washington 2008). Looking at data from the U.S. Courts of Appeals, we find that conditional on the number of children, judges with daughters consistently vote in a more liberal fashion on gender issues than judges without daughters. This effect is particularly strong among Republican appointed judges and is robust and persists even once we control for a wide variety of factors. Our results more broadly suggest that personal experiences — as distinct from partisanship — may influence how elite actors make decisions, but only in the context of substantively salient issues.

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Senate Convicts Federal Judge Thomas Porteous

The Senate has just convicted federal district Judge Thomas Porteous, whose trial concluded yesterday, on all four articles of impeachment against him. The votes ranged from 69-27 to 96-0. The Senate unanimously convicted Porteous on Article I, which focused on his corruption in taking kickbacks from a law firm involved in a case he presided over as a federal judge. At the other extreme, 27 senators voted against Article II, which addressed Porteous’ corrupt relationship with a bail bondsman while he was a state judge. Perhaps these senators bought defense lawyer Jonathan Turley’s argument that the Constitution bars impeachment for offenses committed before a judge is appointed to the federal bench.

I think Turley’s argument is incorrect under the text of the Constitution. Article II, Section 4 states that “all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High crimes and misdemeanors.” It doesn’t impose any limitation regarding the timeframe during which the relevant crime was committed. If a federal judge confirmed in 2010 is later discovered to have committed murder in 2009, surely Congress could use impeachment to remove him from the bench.

Some, including Turley, have argued that Article III’s statement that judges serve during “good behavior” suggests that they can only be removed for misconduct committed during their time in judicial office. But this provision is generally interpreted to mean only that judges have the right to serve for life unless they are impeached and convicted. Moreover, Article III does not mandate that “bad behavior” justifying removal must occur during the judge’s tenure of office. Finally, Article III does not purport to limit the scope of Article II, Section 4. The best interpretation of the two articles is that judges can serve for [...]

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Senate Begins Impeachment Trial of Federal District Judge Thomas Porteous

It hasn’t made too many national headlines. But today the Senate began to hear the impeachment trial of Louisiana federal district Judge Thomas Porteous:

The attorney for a federal judge facing removal from office argued Tuesday at a rare Senate impeachment trial that Congress is pursuing vague and unconstitutional charges against his client and would be breaking with precedent by convicting him.

Defense attorney Jonathan Turley told senators assembled in the chamber for the historic proceeding that some of the articles facing Judge G. Thomas Porteous are subjective and that others involve conduct that occurred before Judge Porteous was appointed to the federal bench…..

The House voted unanimously in March to bring four articles of impeachment against him. A two-thirds Senate vote is needed to convict. The proceeding is just the 16th impeachment trial before the Senate, and Judge Porteous could become just the eighth federal judge to be removed from office.

House prosecutors allege that Judge Porteous was racking up debt as he struggled with drinking and gambling problems. They say he began accepting cash, meals, trips and other favors from people with business before his court, beginning as a state judge in the 1980s and continuing after he was appointed to the federal bench by President Bill Clinton in 1994.

During previous evidence-gathering hearings, two attorneys who once worked with Judge Porteous said they gave him thousands of dollars in cash, including about $2,000 stuffed in an envelope in 1999, just before he decided a major civil case in their client’s favor.

Impeachment trials of federal judges are rare events. This is only the 13th in all of American history. Sometimes, as in the case of Judge Samuel B. Kent last year (see here for more), the threat of impeachment helps force a resignation, thereby obviating the [...]

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“Judicial Activism” – The Podcast

It seems that everyone’s against “judicial activism,” but what does it mean?  Does labeling a judge or decision “activist” indicate anything more than disagreement with the outcome?  Is it fair to label a judge or judicial nominee “activist”?  The Federalist Society has just posted a podcast debate on these questions featuring our own Randy Barnett, Pamela Karlan, Ed Whelan, and Erwin Chemerinsky.  John Eastman moderates. [...]

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