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Judge Edith Jones & "Political Activity?"

posted by Bob Lawless

Over the past two weeks, I have been following a story about Leif Clark, a bankruptcy judge in San Antonio (see here and here). As regular Credit Slips readers will remember, Judge Clark wrote a letter to National Public Radio responding to an interview. In the letter, Judge Clark made remarks highly critical of the Bush Administration's attitude toward civil liberties. At the time, I thought we had the proverbial tempest in a teapot about whether Judge Clark's comments violated the Canons of Judicial Ethics which forbid judges from engaging in "political activity." The San Antonio News-Express has reported that Judge Clark's comments are now "under review by the chief judge of the 5th Circuit Court of Appeals, the tribunal that disciplines federal judicial misconduct in Texas, Louisiana, and Mississippi."

When I saw that, it reminded me of another time a judge commented on public issues. In Judge Edith H. Jones & Todd J. Zywicki, It's Time for Means-Testing, 1999 B.Y.U. L. Rev. 177, Judge Jones and Professor Zywicki urged Congress to adopt means testing as a gatekeeping rule before consumers could file bankruptcy. At the time, that proposal was hotly contested, but it ultimately became law in 2005. Judge Jones, of course, is chief judge of the Fifth Circuit. She is the very same judge who is now reviewing Judge Clark's comments.

What justification can exist for possibly treating the two situations differently? As a bankruptcy judge, Judge Clark made comments on matters that could not conceivably become an issue in his bankruptcy courtroom. Judge Jones on the other hand will be hearing appeals involving the means test that she advocated as a panacea to the bankruptcy system's ills. If anything, Judge Jones's article raises more serious concerns about the appearance of impartiality because she commented on matters that could come before her court.

I suppose one might say that Judge Clark's comments concerned a matter on the front page of every newspaper, but Judge Jones wrote about an issue that arises less passion. Surely that cannot be the basis for a principled distinction. Given the numbers of persons affected by the U.S. bankruptcy system each year, Judge Jones wrote about an issue of great important to a great many people, even if it is a topic that does not exactly cause protests in the streets.

One might also try to say that Judge Clark's letter to the editor somehow expressed mere opinion and does not rise to the formality and dignity of the academic article where Judge Jones expressed her views. Without rehashing here the entire debate about the current state of legal scholarship, let's just say that legal journals are not exactly renowned for their dispassionate empirical analyses and are characterized principally by normative argument. In fact Judge Jones and Professor Zywicki did not disguise that their conclusions in the article rested on their personal views:

Unlike, perhaps, the critics of means testing, we believe that the dramatic escalation in consumer bankruptcies in an era of prosperity is a troubling and costly social phenomenon. In our view, the evidence now available tends to suggest that the recent rise in personal bankruptcies has been significantly influenced by a decline in the personal shame and social stigma traditionally accompanying bankruptcy, and by changes in the law and legal practice that have facilitated filing bankruptcy.

1999 B.Y.U. L. Rev. at 180. Unlike the supporters of means testing, I believe differently. In my view, the evidence is different than what Judge Jones and Professor Zywicki see. I do not expect they agree with me, but their opinion is no less an opinion for being published in an academic journal.

At the end of its article, the San Antonio News-Express article quotes DePaul law professor Jeffrey Shaman: "'We need judges to participate in the public discourse,' he said. 'We need their wisdom and their experience.'" That's exactly right, and it's right whether we are talking about Judge Jones's views on means testing or Judge Clark's views on detainee rights. By even initiating the review of Judge Clark's comments, the Fifth Circuit has put a significant chill on speech protected by core First Amendment values. Another expert, James Alfini of the South Texas College of Law, wondered whether the Fifth Circuit's actions did not implicate a recent Supreme Court case that struck down a rule prohibiting judges running for office from expressing their views. Coincidentally enough, it was also reported today that a Texas appeals court panel had dismissed a complaint against a judge who had spoken out in favor of Harriet Meiers's nomination to the Supreme Court. The Fifth Circuit should take note and quickly shut down this review.

Comments

Thanks for pulling all this together. You're quite right.

Bob, I think the following excerpt from my 12/13/06 post on my Bankruptcy Litigation Blog entitled "A Year After BAPCPA: The Slugfest Continues" sums up my views as to why Judge Clark should be extolled, not reprimanded, for candidly expressing his political opinions on questions of civil liberties. Here's what I wrote (various embedded hyperlinks that I'm unable to add here can be accessed at my blog site):

Professor Lawless, no friend of BAPCPA, summarizes the day's events here (U of I Faculty Blog) and here (Credit Slips Blog). Professor Lawless took Senator Grassley to task for these opening remarks, as well as for openly questioning whether it's unethical for a judge to criticize BAPCPA. In this regard, it is worth looking at Canon 4 of the Code of Conduct for US Judges, which generally is read to allow judicial commentary on inept laws. As Professor Steven Lubet (author of Lawyers' Poker: 52 Lessons That Lawyers Can Learn From Card Players and the classic textbook Modern Trial Advocacy) wrote 22 years ago in a monograph published by the American Judicature Society entitled Beyond Reproach: Ethical Restrictions on the Extrajudicial Activities of State and Federal Judges (p.40):**

"In the same manner that judges' charitable and civic activities must not detract from their impartiality, so must their personal lives be free from the suggestion that their judging will be tainted by bias. This is not to say that judges need refrain from forming and expressing opinions. There is no reason to insulate judges from normal human discourse, and there surely is no way to prevent intelligent human beings from developing what Justice Rehnquist calls "an inclination of temperament or outlook." Furthermore, in most cases where a judge's life actually has evidenced a "tendency or inclination to treat a particular litigant more or less generously than a different litigant raising the identical legal issue" [again quoting Justice Rehnquist], the appropriate remedy is recusal, not prohibition of the conduct which gives rise to the favoritism. It is natural to expect a judge to be "biased" in favor of his or her children; this bias is resolved by disqualifying the judge from sitting in cases involving the children, not by forbidding procreation."

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