June 21, 2004
ONE REASON WHY I WOULD RATHER BE AN ACADEMIC than a federal judge is that academics can say whatever we think, and can make outrageous-but-clever points without worry, even if our logic goes astray. Judges can't do that without risking their own reputations, and harming that of the federal judiciary.
This is something that my former law professor, now judge, Guido Calabresi, should have thought about more deeply before making remarks comparing Bush to Mussolini. From an academic, these remarks would have been unimpressive but unimportant. From a Senator, they would have been unfortunately overwrought and divisive.
From a federal appeals judge, Guido's remarks (assuming they have been correctly reported) are not only tendentious and inflammatory, but will serve to further encourage those who call the federal courts politicized and overweeningly liberal. He's a smart and thoughtful guy, but he should have been smarter and more thoughtful here.
(Via Andrew Sullivan).
UPDATE: Eugene Volokh delivers a much more vigorous spanking here.
It's deserved, I'm afraid.
ANOTHER UPDATE: More here, in response to Calabresi's call for Bush to be voted out of office:
It is hard to take Calabresi's structural argument seriously; the argument is a political one. . . .
In the past, I have advocated according judges broad free speech rights. I retain this position. In general, I think more harm comes from muzzling judges than from letting them freely speak, even on topics that intersect with politics. What constitutional issue does not have a political dimension, after all.
But Judge Calabresi's remarks go too far. His speech constitutes an unambiguous violation of the Code of Conduct. He has improperly publicly declared opposition to a specific political candidate (and thereby implicitly endorsed another). Such brazen politicking from members of the federal bench cannot be tolerated.
Read the whole thing. In a later post, Eugene Volokh observes:
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.
It is my fond hope that a transcript will demonstrate that Calabresi was misquoted.
MORE: Jonah Goldberg observes:
Calabresi's argument for ousting Bush seems like a silly and partisan rationalization for his desire to oust Bush. And, I should say, that demanding a popular uprising to "cleanse" the decadent democratic system in order to sweep your side into power is itself an argument a great many fascists would find very familiar.
STILL MORE: Howard Bashman has a related report.