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A Question of Ethics

To the Editors:

I write to differ on an important detail in Ronald Dworkin’s commentary on Judge Richard Posner’s recent book on the Clinton/Lewinsky episode, An Affair of State [NYR, March 9]. Professor Dworkin, for whom I have the deepest respect, speaks of the ethical question of the propriety of comment by a federal judge in a possible criminal proceeding, referring to the Ethical Code of Conduct for United States Judges. He observes that “the ethical question is one for Posner himself to decide.”

I think not. Judge Posner makes some forty harshly condemnatory and highly judgmental criticisms of President Clinton. He denounces “Clinton’s violation of federal criminal law” (p. 9); his “criminal behavior and obsessive public lying” (p. 10), because he is “guilty of serious criminal conduct” (p. 11). His statements are “clearly perjurious” (p. 45) since he “repeated many of the lies” before the grand jury (p. 46) and these “are federal crimes” (p. 52). Someone else doing the same thing would, conservatively, be given “a prison sentence of 30 to 37 months” (p. 55), for it is “clear beyond a reasonable doubt… that President Clinton obstructed justice… perjuring himself…tampering with witnesses…and suborning perjury” (p. 54). He “repeatedly swore falsely to God… shamelessly denied being guilty…gives religion a bad name” (p. 144).

This will do as a sample.

If a non-judge were to publish such a work, it would not create an ethical problem; a problem of good taste, but not ethics. But there is a question as to whether it is appropriate for a sitting judge to publish in this tone.

Clearly, Judge Posner would be disqualified from participating if a case to which President Clinton was a party were to come before his court. Whether warranted or not, his views reflect an acute bias and there would be a gross “appearance of impropriety” if he were called upon to pass on some testimony of Mr. Clinton in such a hypothetical case. While it is improbable in the extreme that such a case could ever arise, there could perfectly well be cases in Judge Posner’s court involving programs of the administration which Mr. Clinton heads, and these might involve some evaluation of the weight to be given to, say, a Clinton message to Congress. Judge Posner might well be disqualified in such a case.

However, the more direct question is whether Judge Posner is subject to ethical censure for a gratuitous publication of this nature about the head of another department of government. A judge, after he takes the oath of office, cannot function with the freedom of a politician. The judge’s off-court activities are governed by Canon 4 of the Canons of Judicial Ethics, which provide that off the bench the judge may “speak, write, lecture, teach and participate in other extra-judicial activities concerning the law,” and this includes “the administration of justice.” Canon 7 sharply limits “political activity.” However, this is expressly subject to Canon 1 and other canons which require the judge to maintain “high standards of conduct” to maintain “the integrity and independence of the judiciary.”

This combination of provisions has led to considerable discussion as to what a judge may do off the bench. While it is generally agreed that the judge may speak out for the improvement of the law, as Judge Albert Tate Jr., then of the Supreme Court of Louisiana, wrote, a judge should avoid “a disapproved role as a political advocate actively campaigning for or against a controversial proposal hotly disputed in the political arena.” As the Supreme Court of Florida has put it, if a judge is not willing to forego “political activities,” he should not be a judge.

As to the exact meaning of the requirements, courts have differed. The New Jersey Supreme Court believes that judges should avoid speaking out on “public issues that are frequently the subject of political controversy,” while the Washington Supreme Court has concluded that these restrictions apply only to “partisan political activity.” Judge Posner does not sound “non-partisan.”

The nationally leading article on this subject is by former American Bar Association president Talbot D’Alemberte, now president of Florida State University, in the Tulane Law Review. Mr. D’Alemberte argues that a judge should not be removed from office because “he possesses an unpopular philosophy” or “has offensive idiosyncrasies.”

Mr. D’Alemberte adopts as his own the views of Justice Frankfurter in the cold war Dennis case: “History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day….” Mr. D’Alemberte concludes that “tolerance of the occasional abuse of free speech by a rogue judge seems preferable to the loss of independence and repression of speech for those who must protect the free speech of others.”

Similarly, a distinguished justice of the California Supreme Court believes that ethical standards should not be used to apply a “standard of appropriate taste and style in language.”

At the same time, there is another standard short of the unethical. An opinion by one of the justices of the Supreme Court of Florida says that some publications, even if they do not violate the Code of Judicial Conduct, may “be in poor taste,” though this is an insufficient ground for discipline.

Curious as to what the attitude of other judges and scholars might be, I asked several of them. One judge believes that Judge Posner is guilty of a “serious breach” of ethical requirements. He believes that if Judge Posner can be vitriolic about the President, other judges can be equally vitriolic about presidential candidates; for illustration, a judge with harsh views about Pat Buchanan should be equally entitled to call him a liar. Another judge believes that Posner is disqualified in any case in which President Clinton’s credibility would be an issue, but that such cases would be “rare.” He does not think that Posner would be disqualified from legislation which merely involved the Clinton administration.

A distinguished scholar believes that although Judge Posner cannot be sanctioned for an ethical wrong, he has been “guilty of a grave impropriety” because his book “certainly undermines the perception of judges as disinterested and impartial.” He concludes that “the compelling interest in protecting the independence of the judiciary justifies putting some limitations on the public utterances of the judge. Just where those limitations is located is a trickier question than most realize. Posner has found the line and crossed it.”

Another very prominent scholar in the field has observed that Judge Posner’s conduct was not unethical, but also was “not wise.”

I conclude that Judge Posner has disqualified himself from any case in which the personal integrity of the President (unlikely) or his administration (not so unlikely) is involved. He is not subject to ethical censure for getting into an unnecessary wrangle with the President, but he is guilty of bad taste. He writes himself off as a name-calling exhibitionist who gains audience because of his high judicial position. Views which would be considered merely colorful if expressed privately, as over the dinner table, detract seriously from the image of an impartial judiciary when trumpeted the length of the land.

John P. Frank
Lewis and Roca LLP, Lawyers
Phoenix, Arizona

Ronald Dworkin replies:

I am particularly grateful for John Frank’s letter: he is a distinguished lawyer who has published several articles on judicial ethics and was instrumental in the enactment of the federal disqualification of judges statute. He disagrees with my statement that Judge Posner was entitled to decide for himself whether his comments about Clinton’s character, politics, and alleged crimes were a violation of the canons of judicial ethics. I should have been more careful: I did not mean (though what I said might well seem to suggest) that judges are free to decide for themselves whether they will respect or flout the canons. I meant only that disciplinary action would be inappropriate in Posner’s case. Legal education and culture would be much poorer if judges never spoke or wrote about the law outside of their formal opinions: it enhances the public’s understanding of law, and promotes a healthy and democratic debate about judicial philosophy, when they write about legal matters for a general audience. True, they can make that contribution without Posner’s excesses—without insulting the officials of the other branches of government, taking sides in pressing political controversies, or prejudging criminal prosecutions under active consideration. But if judges are disciplined for violating these constraints in close or controversial cases, other judges might become hesitant to speak out at all, and we should therefore seek sanctions only when the violations are clear.

That is also the conclusion of Steven Lubet, a professor of law at Northwestern University and another expert on legal ethics, who believes that although Posner did violate the canons in prejudging Clinton’s guilt, he has been criticized enough for the violation.* It does not follow, however, that judges may now imitate Posner with impunity. The widespread reaction to his book has clarified the limits of what is permissible: Frank’s hypothetical judge who calls Pat Buchanan a liar would have crossed over a line that is now less contestable.

  1. *

    See Steven Lubet, “Ethics Clash of Two Giants,” The National Law Journal, April 3, 2000, p. A22. (Lubet is coauthor of the treatise Judicial Conduct and Ethics.) Posner’s claim that a criminal prosecution of Clinton is almost inconceivable looks less and less defensible day by day. Robert Ray, the new Independent Counsel, has now announced that he is actively considering a prosecution, and both The New York Times and The Washington Post have thought it necessary to warn him against that course. Ray and his team of litigators can be expected to take account of the fact that a prominent federal appellate judge has already declared Clinton guilty.

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