Shouldn't Judges Be Civil and Accurate When Publicly Criticizing Others (Including Law Teachers)?

Judge Laurence Silberman (D.C. Circuit) gave a talk to the Federalist Society in California last month. The title was "Judicial Ethics - Phony Concerns and Real Concerns." He defends Justices Scalia and Thomas against criticism arising out of allegations that they attended a  confrence sponosored by the Koch brothers. He criticizes law professors, citing specifically a letter to the House and Senate Judiciary Committees and signed by a 100 plus law professors. He says the letter criticized the two Justices and also Justice Alito. HIs talk is also "very critical" of the conduct of Justice O'Connor, though it is "not pesonal." It is Justice O'Connor's conduct that is the "real concern" in his speech.

Some facts seem to be wrong. I don't see these three or any Justices named in the letter of 100 law professors (dated February 23, 2011). I'm not aware of another letter.

 Judge Silberman also criticizes and disparages me. Of course, criticism comes with the job. We have to expect, even welcome, it. But it should be on the merits. And the facts should be accurate.

 For example, here is what Judge Silberman wrote in part and what I have today replied in a letter to him, also in part.

From the Silberman talk:

"Tony Mauro’s blog for the Legal Times rather predictably supported Justice

O’Connor’s robo calls in Nevada. He consulted Stephen Gillers, a so-called specialist in  judicial ethics at NYU, who is a favorite source for journalists who wish to criticize“conservatives” or support “liberals.” (I have to acknowledge that Gillers declined to join the 100 law school professors complaining about Justices Scalia, Thomas and Alito,although he did say he agreed with parts of the criticism – so he does have some unidentified limits on his partisanship.)"

In my response I pointed out some of my  public statements that supported conservative Justices against criticism and continued:

"You say that I agreed with parts of the criticism of Justices Scalia, Thomas and Alito in the letter of 100 law professors, which I declined to sign. I assume you refer to the letter dated February 23. 2011. I know of no other. You say that my refusal to sign the letter shows some “unidentified limits on [my] partisanship.”  But the letter does not criticize the Justices. It does not even mention them. I declined to sign the letter because I did not agree with all of the action it requested of Congress. 

"I am not 'a so-called specialist.' That characterization was unnecessary to your argument in your talk as well as wrong. I have taught and written in the field of legal and judicial ethics for 33 years and am author of a leading casebook in the area, which has been in print for 26 years and is now in its 8th edition. We disagree on many things, to be sure.  Certainly, you can criticize my views and ideas, but there is no need to use terms like 'so-called.'"





 

Comments

[Steven Lubet]

Let us know if you hear back from Silberman. I once started to write a similar letter to Sen. Hatch (who had criticized both you and me on the floor of the Senate), but I decided against it. I think Silberman is morel likely to respond.

[John Steele]

That comment directed at you, Steve, was a cheap shot.

[Stephen Gillers]

Sen. Hatch critized us on the floor of the Senate? I did not realize it. Yes, if I hear back I will post the reply unless it's marked confidential, in which case I'll just say there was one.

[Brad Wendel]

I wonder whether the ad hominem attack on Steve is part of a general trend I've noticed of some conservative judges and lawyers disparaging legal ethics as a subject -- e.g. Justice Scalia's reference to "that least analytically rigorous and hence most subjective of law-school subjects, legal ethics" or his bizarre habit of refering to the disciplinary rules as the Canons of Ethics. In some of my interactions with the Federalist Society over the torture memos I got the sense that legal ethics is considered a politicized subject. I don't get that. Sure, there are liberal Democrats who teach legal ethics, but I know of plenty of conservative Republicans who teach the subject, too. The only thing I can figure is that one of the fundamental duties of lawyers is to enforce limitations on state power, and conservatives recently have been rather enamored of state power, at least as long as it was in the hands of Republicans. Insisting that the treatment and trial of suspected terrorists conform to legal requirements is called unpatriotic "lawfare," so I guess it's merely political to express concerns about judges having conflicts of interest.

[stan]

Do you dispute this part of his characterization: "is a favorite source for journalists who wish to criticize 'conservatives' or support 'liberals.'" That's where the "so-called" seems to be coming from. As I read the quote, he's not disagreeing with some academic position you've taken.

[stephen.gillers]

I think that reading is grammatically impossible. And I don't agree with the accusation that I'm called because journalists want a particular view, certainly not mainstream reporters, who are professionals. I've defended conservative judges and been quoted doing so.

[John Steele]

Brad, I think that legal ethics is always on the verge of being politicized. (How could it not be, in a democracy with robust free speech?) And as I've posted here at the site I think that the recent criticism of Justice Thomas springs from a fully politicized source, directed at the (presumably) upcoming SCOTUS review of the health care statute. I've been urging legal ethicists to acknowledge that and condemn it (even if the ethicist nonetheless urges reform of recusal rules). If judicial ethics becomes just another venue for ordinary politics, we all lose, and that's a significant danger right now. Leaving aside the unfair swipes at Steve, which are "below the belt," I'm not surprised in the slightest that some federal judges currently view this issue as ordinary politics in the garb of ethics. I often say that, "sometimes, 'legal ethics' is just a brick they throw at you," meaning that it's always susceptible to being used as a handy weapon.

Fwiw, I also believe that the Totenberg-Greenhouse accounts of Justice Alito's conflict in the Vanguard case were fully politicized and were misleading to the point of being deceptive -- as I wrote on this site back when it all went down.

Finally, I've critical of Justice Scalia for not spreading around his speaking gigs to different venues across the political spectrum. He ought to be trying to bolster the court's public reputation that way.

[Rick Underwood]

Chill, everybody! Who cares what assholes think (from the left or right)? I take criticism all the time from people who don't know anything about me. Life is too short to take cheap shots seriously.

[Steven Lubet]

I agree with John Steele that the criticism of Alito was wrong, and I published an oped saying so at the time (coauthored with David McGowan). I also wrote an oped defending Priscilla Owen. Those were not just responses to reporters, but rather opinion pieces written after conducting research. I take my responsibilities seriously, and I am scrupulously apolitical on matters of judicial ethics.

Politicians, however, are political by nature, and they cannot understand that somebody could be professionally neutral on important matters.

The confirmation process has often descended into a search for dirt, but we academics still have an obligation to comment honestly on the issues that are raised. After all, sometimes political operatives find real violations.