FC: Some people never learn: Judge Jackson defends his big mouth

[Declan McCullagh <declan () well com>]

Jackson makes some cogent and intelligent points about judicial secrecy. 
But what he doesn't seem to get is that if he does not care for a law or 
regulation, it does not suddenly cease to apply to him.

-Declan

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Previous Politech messages:

MS to Supremes: Judge Jackson's bias should give us new trial
http://www.politechbot.com/p-02365.html

Appeals court nixes Microsoft breakup order, new judge 
appointed
http://www.politechbot.com/p-02195.html

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Subject: Some people never learn:  Judge Jackson in Legal Times
To: Declan () well com
From: "James Lucier" <james_lucier () prusec com>
Date: Tue, 15 Oct 2002 16:16:09 -0400

Hi Declan:

Thought FC'ers might enjoy this comment published in the Legal Times by the
ever-forthright Judge Jackson.   After public spankings for his ex parte
comments on both the Marion Berry and Microsoft cases, he is back for more.
Here's the key paragraph:

One convention of federal judicial life to which I have never been fully
reconciled is the notion that judges shouldn't ever comment publicly about
their cases-period. As the branch of government that prides itself on being
the principal guardian of the right of free speech for all, the federal
judiciary can still be remarkably intolerant when it comes to its own.


http://www.law.com/servlet/ContentServer?pagename=OpenMarket/Xcelerate/View&t=PubArticleDC&c=PubArticle&cid=1032128635760&live=true&cst=1&pc=0&pa=0


 Don't Gag the Judges

 Thomas Penfield Jackson
 Legal Times
 09-30-2002

 The Supreme Court has recently confirmed the constitutional right
 of elective judges to speak forthrightly to the electors about
 legal issues they may be obliged to decide, in Republican Party
 of Minnesota v. White (2002). So now is the time for the federal
 judiciary to re-examine its own attitude toward public speaking
 by federal judges. Our life tenure is all the more reason for us
 to be able to communicate informally on occasion with a public
 that must live with our decisions, yet can never vote us out of
 office.

 One convention of federal judicial life to which I have never
 been fully reconciled is the notion that judges shouldn't ever
 comment publicly about their cases-period. As the branch of
 government that prides itself on being the principal guardian of
 the right of free speech for all, the federal judiciary can still
 be remarkably intolerant when it comes to its own.

 CANON OF SILENCE

 The Canon of the Code of Judicial Conduct on the subject of
 unofficial public statements by federal judges generally provides
 merely that a judge should "avoid public comment on the merits of
 a pending or impending action." The canon then expressly admits
 of exceptions for explanations of the legal process and for
 purposes of legal education. I have considered the canon to be
 simply a rule of prudence, i.e., don't say anything for public
 consumption, on or off the bench, that might sound prematurely
 judgmental or cast doubt upon the essential fairness of the
 proceedings.

 Although some judges will on occasion speak "off the record" to
 members of the press, many judges -- perhaps most -- believe that
 the canon imposes a virtual code of omerta forbidding any public
 commentary while a case remains unfinished in any respect, quite
 possibly forever. They regard the canon as a commandment to
 withdraw from all public discourse about the case, even if their
 thoughtful and timely observations might be a significant
 contribution to public understanding of it. The ostensible reason
 is that anything said informally, but publicly, about a case must
 perforce detract from the court's "appearance of impartiality."
 Whether what the judge might say is legally and factually
 accurate is essentially irrelevant.

 So interpreted, the canon represents a variant of that dubious
 maxim of leadership: Never apologize; never explain. It also
 suggests that the judiciary is more concerned with appearances
 than with actuality.

 Ironically, the unwritten corollary to the same rule countenances
 almost anything a judge chooses to say about a case when spoken
 from the bench or in a written opinion, even if what he says does
 little to promote the appearance of a neutral and detached
 jurist. No one ever talks back, and there are no follow-up
 questions.

 The distinction between sanctioned "judicial" speech and
 proscribed "extrajudicial" speech is unrealistic. It conflates
 the concept of unofficial commentary and personal prejudice,
 which do not always equate, and draws the line between the
 permissible and the impermissible on the basis of whether the
 judge speaks ex cathedra or simply as a knowledgeable participant
 in the adjudicative process.

 A judge's silence, on or off the bench, does not guarantee his
 impartiality. Any "appearance of impartiality" conveyed by a
 judge's silence may be an illusion. It may also reflect ignorance
 or indifference. The only genuine determinant of judicial
 impartiality is the integrity of the judge himself, not
 appearances, and a reputation for candor is a better gauge of
 integrity than a reputation for silence.

 MOST SECRETIVE BRANCH

 The judiciary is in many ways the most secretive of the three
 branches of the federal government. It is not subject to the
 Freedom of Information Act or any other so-called "sunshine"
 statute. Judicial disciplinary proceedings are conducted in
 private. Although the judicial system professes to display its
 decisional processes "on the public record," its most important
 decisions are made behind closed doors, whether by judges or
 juries. Law clerks and supporting staff are sworn to secrecy.
 There are remarkably few "leaks," and no whistleblowers. A
 veteran journalist once told me that "we know more about how the
 CIA operates than we do about you."

 That secrecy has consequences. In his remarks to the D.C. Chapter
 of the Fellows of the American Bar Foundation last spring, my
 colleague Judge Paul Friedman expressed alarm at the increasing
 intensity of public attacks upon judges and their decisions, and
 the loss of public confidence in the judiciary as an impartial
 and nonpolitical branch of government. Because it would be
 "unseemly" for judges to respond, however, as well as contrary to
 the Code of Judicial Conduct, Judge Friedman called upon the bar
 to assume the responsibility to defend them.

 I cannot agree. Judges are responsible for their decisions, not
 the bar. And so judges should expect to bear a large part of the
 responsibility for dispelling the caustic effects of any
 criticism they provoke. One way of doing so would be to become
 more communicative.

 The Supreme Court may be an exception, but if there ever was an
 era in which lower court judges could rely upon the majesty of
 the office and the aura of omniscience to inspire confidence in
 their decisions, that age is long past. People expect other
 public officials to earn their respect in part by displaying a
 willingness to answer good-faith questions about actions taken
 and decisions reached. Judges should be no exception.

 I know of no good reason why a judge who has made a decision, in
 a case of obvious interest and concern to many people, should not
 at least be willing, if not expected, to respond to legitimate
 inquiries about it from responsible interlocutors, whether they
 are lawyers, academics, students, journalists, historians, or the
 local garden club.

 I am certainly not advocating that judges should issue press
 releases or hold regular press conferences, or even be readily
 available for public comment. There are, of course, eminently
 good reasons for judges to be circumspect as a rule. Judges
 should generally not offer post hoc defenses of decisions they
 have made if they truly believe they have sufficiently explained
 them on the official record. The record may, indeed, "speak for
 itself." For another thing, a garrulous judge is likely to be
 seen as self-promotional. For yet another, there are those in the
 media all too willing to exploit judicial loquacity to their own
 ends, which may be anything but the public's interest in
 understanding a controversial case.

 MORE-SENSIBLE RULES

 Moreover, judges should never speak publicly in or out of court
 until the timing is appropriate. In jury cases judges should
 obviously not speak out when, or in such a fashion, as may unduly
 influence a jury in its work. In nonjury cases, a judge's
 premature expression of an opinion on the merits may signify a
 mind closed before all of the evidence is in. Appellate judges
 should not disclose their thinking about a pending appeal until
 the collegial process of writing majority and minority opinions
 is completed.

 And I add another proscription: as a rule, judges should not
 speak ill of other judges personally, whether on or off the
 bench. Personal attacks on judges by other judges also undermine
 respect for and confidence in the judiciary.

 Thomas Penfield Jackson is a senior judge on the U.S. District
 Court for the District of Columbia. He presided over the trial in
 United States v. Microsoft in 1999 and 2000. On appeal, the D.C.
 Circuit removed him from the case because he had commented on the
 dispute outside the courtroom.




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