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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

Judges and Elections

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July 13, 2004

A sitting judge of the United States Courts of Appeals for the Second Circuit, Judge Guido Calabresi, in a public address, recently attacked the Supreme Court of the United States and the President of the United States.

The Supreme Court, he said, had acted "illegitimately" in putting the President in office. The act, he continued, was similar to the act of the King of Italy, who put Mussolini to power in Italy, or the act of German President Hindenburg, who put Hitler in power. Citizens of the United States, he then concluded, should vote for Kerry to purge the mistake.

Since the Code of Judicial Ethics prohibits sitting judges from publicly endorsing candidates, he ought to account for his comments in a hearing before a federal judicial disciplinary panel., as several members of Congress have requested. A failure to hold such a hearing would be evidence that our judicial disciplinary system is toothless. Although Judge Calabresi's subsequent apology for his remarks is welcome, it does not obviate the need for a hearing at which he explains how he happened to make such inappropriate comments.

His comments also put in issue the propriety of a lower court judge using such severe language in criticism of a superior court whose rulings he is supposed to implement.

Reasonable minds can disagree on the policy employed or legal interpretations made in the Bush v. Gore opinion. But to label the decision lawless or a "coup d'etat," as some political pundits have done, ratchets the criticism up a substantial notch. It encourages the public to disrespect the decision not because it was in error but because it was an oppressive exercise of raw power that itself was illegal.

Was the Supreme Court's decision itself an impeachable offense? A "high crime or misdemeanor"?

Political pundits can make the argument but sitting lower court judges ought not. A person acknowledges that taking a judgeship requires sacrificing some freedom of comment. The need for some measure of judicial neutrality and objectivity - the appearance of giving every litigant a fair hearing and not prejudging the result - requires that judges do not pop off in the press on public matters, using their title as a platform.

And a lower court judge has the additional responsibility of agreeing to apply superior court opinions faithfully. This means a lower court judge ought not rip superior court opinions in public. Criticism must be, well, respectful and in appropriate forum.

If Judge Calabresi believes that the court acted "illegitimately" and feels compelled to vent, he should have resigned his position before he offered his polemic.