Off-Bench Commentaries of Federal Judges A Case Study

Philip Stevens
Spring 2015
Upper Level Writing Requirement
Off-Bench Commentaries of Federal Judges: A Case Study
I. Introduction
In late 18th into the 19th centuries American federal judges occupied ambivalent
positions in an ambiguous institution.1
United States courts lacked their current tools of political
influence.2
By 1860, judges developed traditions of commentaries to advocate constitutional
principles and develop modern judicial roles.3
At the end of the 19th century and into the early
20th century, judges massively expanded their speeches and writings.4
As the economy and
nationalism grew, so did judicial discourse through justices such as Justice Stephen Field’s
defense of laissez-faire, and Justice David Brewer’s declaring the problem of American
government was “to secure the rights of the individual against the assaults of the majority.”5
By
the mid-1900s judges were producing continuous commentaries, speaking boldly and frankly
about the judicial process.6
One of the most prolific was Judge Felix Frankfurter, who spoke
regularly about his fellow justices.7
Today, a federal judge’s life is divided into time on and off the bench. While on the
bench, judges enjoy a certain amount of freedom regarding their decision-making, sentencings,
and in-court procedures. Much of this latitude is regulated by various rules set by Congress,
1
Alan F. Westin, Out of Court Commentary by United States Supreme Court Justices, 1790-1962: Of Free Speech
and Judicial Lockjaw, 62 COLUM. L. REV. 633, 637
2
Id.
3
Id.
4
Id. at 651.
5
Id. at 652.
6
Id. at 656.
7
Id. at 657.

2
state legislatures, or individual courts themselves. In particular for federal judges, the rules and
policies are promulgated by Congress and the Judicial Conference’s Committee on Rules of
Practice and Procedure and its five advisory rules committees.8
In the alternative, state courts
defer to individual state supreme courts as administrative and rules-promulgating bodies and to
legislating bodies, many modeling their rules off the federal counterpart. Further, logistical rules
such as formatting for documents or scheduling are left for individual courts.9
Even so, an
individual judge may still have further control by dictating particular rules for pleadings and
trials in their courts.10
Justice Rehnquist once noted that judges have to “keep anchors to the outside world.”11
A judge’s life, is guided by a unique code. While most court personnel may enjoy a certain level
of personal freedom, judges’ speech and conduct is further constrained and regulated. While off-
bench, the Code of Judicial Conduct guides extrajudicial behavior, encouraging observation of
high standards of conduct and avoiding impropriety in in all activities.12
These standards suggest
limits on a judge’s speech, an otherwise constitutionally guaranteed right.13
This piece discusses the unique limitations of federal judicial speech in the public sphere,
whether public functions or writings. Even outside of her judicial duties, a judge’s conduct is
important. . Judges, as arbiters of law, have experiences and insights that encourage numerous
opportunities to speak at conferences, government hearings, and other functions, not limited to
the academic world. A judge’s perspective and viewpoints are valuable insights into the judicial
8
Rules Enabling Act, 28 U.S.C. §§ 2071(a), 2071(c) (2015).
9
Id. at § 2071(c)
10
Id.
11
Jeffery M. Shaman, Off-The-Bench Conduct, 57 PA. B. ASS’N Q. 24, 24 (1986).
12
CODE OF CONDUCT FOR UNTIED STATES JUDGES Canon 2 (2014).
13
U.S. Const. amend I.

3
system. They occupy a leadership role in public service. Judges, thus are accountable to the
public to maintain the independence and integrity of the judiciary, and avoid impropriety.14
This essay explores the off-bench commentaries, defined here as something of a term of art, of
modern federal judges, and applies the code of conduct to individual cases. First, it discusses
what types of speech fall under the definition of “commentary;” what is included and what is
excluded. Second, it delves into what canons of the code and rules beyond the code provide
guidance as to these commentaries. What have these rules come to mean as applied to judges’
off-bench lives? Third, the paper explores five relatively recent instances of these commentaries.
Which have contributed to and worked to develop public knowledge? What others threatened
impendent judicial decision-making? Finally, this piece explores how new types of digital
communication open new doors for a judge’s extrajudicial speech. How can these avenues
change the way the public views the law and the judiciary?
While this discussion is limited to federal district court and courts of appeals judges,
Supreme Court justices also may conduct themselves in ways that may be inconsistent with the
code’s admonitions, even though, by its terms, the code is directed at judges of the so-called
lower federal courts.15
However, justices are not subject to the same disciplinary mechanics as
their lower court colleagues. Even so, justices are still the objects of attention from the press and
others alleging conflicts from their off-bench conduct, and may still conduct themselves in ways
prejudicial of the courts. Due to the unique position held by Supreme Court justices, discussions
of applicable extrajudicial commentary is best reserved for a separate discussion.16
14
See CODE OF CONDUCT FOR UNTIED STATES JUDGES Canons 1, 2 (2014).
15
See Russell Wheeler, A Primer on Regulating Federal Judicial Ethics at 56 Ariz. L.Rev. 479, 490-91 (2014)
(Detailing numerous instances of questionable ethical conduct by Supreme Court justices, such as serving as paid
faculty at a law school where the dean was a Supreme Court litigator, attending a dinner funded by an attorney of a
party of pending litigation, and accepting gifts from a donor interested in the outcome of a pending case.).
16
But see infra note 116.

4
II. Scope of Discussion
Judges take part in a large variety of public, off-bench events. These include speaking
events at law schools, government associations, and groups. They write for journals and
personal or group research projects. Judges may discuss the state of the judiciary, campaign for
their elections when required, or report to a variety of judicial conferences. For the purposes of
the discussion at-hand, these appearances are limited to “commentaries.” A commentary is
defined as an extrajudicial speaking or writing that could call a federal judge’s independent
decision-making into question.17
Examples may include public speeches, blogs, or publications.
Commentaries also include personal conduct; what judges do on their own time when not
engaged in judicial activity.18
Law school and conference speeches for educational purposes are
also mostly excluded from this discussion, although under certain circumstances, they could also
may still call the judge’s independent decision-making into question.19
A. A Short Note on Judicial Elections
This paper is principally about federal judges, but it is worth noting briefly that judicial
elections stir a classic debate over judicial independence and accountability.20
How can a judge
hear a case, and decide solely based on application of the law to the facts while simultaneously
facing partisan elections? Despite regular protest, most states select judges and justices through
partisan or non-partisan or retention elections.21
In 2012, nine states selected state supreme court
justices through partisan elections.22
An estimated 89 percent of all justices face election at some
17
Shaman, supra note 11, at 24.
18
Charles Gardner Geyh, James J. Alfini, Steven Lubet & Jeffery M. Shaman, JUDICIAL CONDUCT AND LEGAL
ETHICS 10-2 (5th ed. 2013) [hereinafter Geyh, JUDICIAL CONDUCT].
19
See Infra at 5. But see infra at 10.
20
See G. Alan Tarr, Without Fear or Favor: Judicial Independence and Judicial Accountability in the States 70,
(Keith J. Bybee ed., Stanford University Press 2012).
21
Id. at 69 (Since 1994, no state has adopted merit selection. However, no state with merit selection has yet
replaced it).
22
Id. at 70.

5
point during their time on the bench.23
However, for the purposes of this discussion, election
speeches and campaigning are not considered to be commentaries. Election and campaign
speech is tarnished with the primary motive of job retention, a factor not necessarily found in
public commentaries of this discussion. Also, elections receive special considerations and
jurisprudence not always afforded to normal extrajudicial conduct.24
Due to the unique nature of
election speeches, discussion of the ethics and its limits are best reserved for a separate
discussion.
B. A Short Note on Educational Speeches
Judges commonly speak at law school events, state bar conferences, and other
educational or judicial events. Rarely are the ethics of these speeches debated.25
Even Supreme
Court justices have been well known lecturers. Further, Canon 4B of the Code of conduct
provides that “a judge may engage in extrajudicial activities, including law-related pursuits and
civic, charitable, educational, religious, social, financial, fiduciary, and governmental activities,
and may speak, write, lecture, and teach on both law-related and non-legal subjects.”26
While,
certainly possible and encountered in the first case study, federal judges teaching or speaking
generally has posed few problems in judicial ethics, and is thus not the central issue in this
discussion of off-bench commentaries.27
III. The Code of Conduct
The Code of Conduct for United States Judges was adopted by the Judicial Conference of
the United States in 1973 and amended since then.28
It prescribes ethical norms for federal judges
23
Id.
24
See Republican Party v. White, 536 U.S. 765 (2002) (Holding restriction of judicial campaign speech
unconstitutional on First Amendment grounds).
25
See Geyh, JUDICIAL CONDUCT at at 9-2.
26
27
See Geyh, JUDICIAL CONDUCT at 9-2. But see infra at 10.
28
United States v. Microsoft Corp., 253 F.3d 34, 47 (D.C.Cir. 2001)

6
as a means to preserve the actual and apparent integrity of the federal judiciary.29
The code
applies to the conduct of federal judges. Before delving into the canons themselves, it is
important however to reveal why extrajudicial behavior necessitates regulation all. Shouldn’t a
judge be evaluated based off his in-court performance? Judges relinquish a certain amount of
their constitutional freedom of speech upon taking office.30
First, judges need to primarily avoid
the appearance of partiality or favoritism.31
The canons also need to prevent disrepute for the
bench so as to maintain confidence in the independence of the judiciary.32
Further, the code
works to avoid unfair exploitation of the judicial office.33
Finally, restrictions ensure judges will
not be distracted from outside influences.34
Regulating private conduct ultimately ensures a
judge’s independence and accountability while on the bench.
The code however, is not a binding set of rules but instead “rules of reason,” guidelines to
which judges should aspire to comply.35
Complaints against federal judges are filed under U.S.
Code chapter 16 Title 28 against judges a complainant alleges “engaged in conduct prejudicial to
the effective and expeditious administration of the business of the courts.”36
While complaints
and courts cite to the code, because some actions inconsistent with the code may in fact
constitute improper conduct under the statutory definition, as interpreted by the Judicial
Conference and judicial councils, the grounds of a complaint and any binding sanctions must be
set in statute. 37
Judges may in certain circumstances violate the code, while still evading formal
29
Id.
30
Shaman, supra note 11.
31
Id.
32
Id.
33
Id.
34
Id.
35
CODE OF CONDUCT FOR UNTIED STATES JUDGES Canon 1 cmt. (2014)
36
28 U.S.C. § 351(a) (2015).
37
Infra 12-13.

7
statutory disciplinary procedures.38
The code thus, while important, is ultimately only a guiding
and influential set of rules.
There is however a danger of overregulation. The Code of Conduct itself states that
“complete separation of a judge from extrajudicial activities is neither possible nor wise.” A
judge is in a “unique position to contribute to the law” and “is encouraged to do so.”39
The
canons resist overregulation, and promote a judge’s interaction outside of the courtroom. Judges
should publish and speak from their unique knowledge. It is a waste to confine important legal
minds to only the courtroom.
A. The Canons
Several canons of the code apply to a judge’s extrajudicial conduct, and to off-the-bench
commentaries.40
First, Canon 1 requires a judge to “maintain and enforce high standards of
conduct and should personally observe those standards, so that the integrity and independence of
the judiciary may be preserved.”41
The commentary further explains the rules are “rules of
reason” not meant to impinge on essential independence of judges.42
Canon 2A is also applicable. It requires judges “respect and comply with the law and
should act at all times in a manner that promotes public confidence in the integrity and
impartiality of the judiciary.43
” The official commentary to Canon 2A sets out a test of
38
See In re Charges of Judicial Misconduct (Calabresi), 404 F.3d 688 (Judicial Council of the 2nd Circuit 2005)
(discussing Federal Judge Guido Calabresi comparing President Bush's election in 2000 to the rise of Adolf Hitler
and Benito Mussolini did violate Canon 5 of the Code, but Judge Calabresi’s apology, the chief judge’s public
admonition, and council’s concurrence were sufficient sanction and corrective actions.”)
39
40
The American Bar Association (ABA) Model Rules of Professional Conduct may apply as well, setting out a
more thorough standard of behavior.
41
42
Id. at Canon 1 cmt. (2014). See also Id. (“Not every violation of the Code should lead to disciplinary action.
Whether disciplinary action is appropriate, and the degree of discipline, should be determined through a reasonable
application of the text and should depend on such factors as the seriousness of the improper activity, the intent of the
judge, whether there is a pattern of improper activity, and the effect of the improper activity on others or on the
judicial system.”)
43
Id. at Canon 2A (2014).

8
whether a judge has an appearance of impropriety. “[W]hen reasonable minds, with
knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would
conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a
judge is impaired.44
” Further, Canon 2B dictates a judge “should not allow family, social,
political, financial, or other relationships to influence judicial conduct or judgment.45
” It also
says a “judge should neither lend the prestige of the judicial office to advance the private
interests of the judge or others nor convey or permit others to convey the impression that they
are in a special position to influence the judge.46
”
Judges are also restricted in their speech over pending cases as well. Canon 3A(6)
dictates “a judge should not make public comment on the merits of a matter pending or
impending in any court,” qualified by allowing “public statements made in the course of the
judge’s official duties, to explanations of court procedures, or to scholarly presentations made
for purposes of legal education.” Finally, Canon 4 concerns in particular, a judge’s
extrajudicial speech. Canon 4A(1) allows a judge to “speak, write, lecture, teach, and
participate in other activities concerning the law, the legal system, and the administration of
justice.”
IV. The Commentaries
The following is an analysis and discussion of several publicized instances of judges’ off-
bench commentary. The first two cases falls outside of the scope of permitted judicial speech,
and should have been self-censured by the judge. The next two examples are legitimate, albeit
controversial, exercises of free speech, contributing to public knowledge. The final example
44
Id. at Canon 2A cmt. (2014).
45
Id. at Canon 2A (2014).
46
Id. at Canon 2B.

9
explores the case of a state judge case, and examines the similarities to the cases of federal
judges.
A. Judge Jackson and the Press
On June 7, 2000, Judge Thomas Penfield Jackson of the United States District Court for
the District of Columbia handed down his ruling following the trial of U.S. v. Microsoft.47
He
found Microsoft liable for violations under the Sherman Act.48
However, most remarkable for
the purposes at hand, is not the outcome of the trial, but the judge’s conduct with the press during
and after the trial proceedings. On appeal, the United States Court of Appeals for the District of
Columbia Circuit would call his actions “deliberate, repeated, egregious and flagrant.”49
Immediately after entering his judgment, Judge Jackson gave several interviews to member of
the press, including the London Times, and the Wall Street Journal, as well as speeches at a
seminar at Dartmouth College after the decision’s release.50
Jackson said of then-Microsoft-
chairman Bill Gates; his “testimony is inherently without credibility” , and he “has a Napoleonic
concept of himself and his company, an arrogance that derives from power and unalloyed
success with no leavening hard experiences, no reverses.”51
He compared the company’s
executives to drug traffickers who “never figured out that they shouldn’t be saying certain things
on the phone.”52
In interviews both during and after the trial, The New Yorker reported him
denouncing Microsoft’s protestations of innocence comparing them to the protestations of
innocence from the gang members of the D.C.-area Newton Street Crew, from one of his past
47
Microsoft Corp., 253 F.3d 34.
48
Id. at 45.
49
Id.
50
Id. At 45; John Schwartz, U.S. vs. Microsoft: The Judge; A Judge Overturned by an Appearance of Bias, N.Y.
TIMES, June 29, 2001, http://www.nytimes.com/2001/06/29/business/us-vs-microsoft-the-judge-a-judge-overturned-
by-an-appearance-of-bias.html (Discussing how some of the interviews occurred as early as September 1999,
several months before his verdict).
51
Schwartz, supra note 50.
52
Id.

10
trials.53
Beyond simply divulging a personal distaste for Microsoft officers, he also revealed his
opinion on a remedy for Microsoft’s anti-trust violations in the months leading up to the verdict.
He told the New York Times he was not aware of “any case authority that says I have to give
them any due process at all. The case is over. They lost.”54
Jackson’s off-bench speech degraded confidence in the impartiality and integrity of the
judiciary. At first glance, Jackson’s comments after his released decision, may seem proper.
Canon 3A(6) prohibits only public comment on “merits of a matter pending or impending in any
court.” The parties’ case was concluded and the verdict made public. Here however, the key
term is “any.” Microsoft filed an immediate appeal following the district court’s verdict. Thus,
Jackson’s comments substantively concerned the merits, not of a trial case, but of a court of
appeals case. The commentary to Canon 3A(6) elucidates further on the rule’s intended meaning
and application: “the admonition against public comment about the merits of a pending or
impending matter continues until the appellate process is complete. If the public comment
involves a case from the judge’s own court, the judge should take particular care so that the
comment does not denigrate confidence in the judiciary’s integrity and impartiality, which would
violate Canon 2A.”55
Clearly, Jackson’s comments concerning the details of the case violated
the canons.56
Also, as the case was from “the judge’s own court” his failure to take care of his
53
See generally Microsoft Corp., 253 F.3d at 47 (“In that case, the three victims had had their heads bound with duct
tape before they were riddled with bullets from semi-automatic weapons.On the day of the sentencing, the gang
members maintained that they had done nothing wrong, saying that the whole case was a conspiracy by the white
power structure to destroy them,Jackson recalled. I am now under no illusions that miscreants will realize that
other parts of society will view them that way.” (quoting THE NEW YORKER)).
54
Id.
55
CODE OF CONDUCT FOR UNTIED STATES JUDGES Canon 3A(6) cmt. (2014). See also CODE OF CONDUCT FOR
UNTIED STATES JUDGES Canon 2A (2014) (“A judge should respect and comply with the law and should act at all
times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”).
56
I question the binding nature or applicability of the Official Commentary to the Codes of Conduct for United
States Judges. It would seem logical that if the drafters wanted to include the term “appellate process” in addition to
“any court” to Canon 3A(6) they would have. Even so, use of the latter term necessarily makes the former
redundant. It seems, instead of adding to the canon, this comment seems to particularly emphasize the extra-

11
comments was particularly egregious. Discussing the merits caused the parties to lose
confidence that Jackson decided the case impartially and based on the facts presented.
In particular, Jackson’s illustrative descriptions of Microsoft officers as well as his
comparison to previous criminal defendants exposed a clear and unambiguous bias. It affected
the case in two substantial ways. First, Jackson degraded trust that he decided the case
impartially by stating opening he found Microsoft officers’ testimonies to be without credibility
based on his personal views of the company’s “unalloyed success.”57
The judicial role requires a
judge to preside over a case without interference from his personal feelings for or against any of
the parties present. Jackson, from his comments to the public, quashed that trust by presiding
over a case in which he appeared to let his resentment for a party dictate his decisions. Second,
his bias denied the parties a just and fair outcome. While he may have maintained an ability to
set aside personal feelings over the parties; his comments indicated otherwise. The rules are
concerned with this appearance to the public, even if the judge maintains impartiality. Even so,
disregarding the credibility of testimony, based solely on which party is originates demonstrated
Jackson’s refusal to objectively consider the evidence. Without a fair and impartial review of all
the facts meant he could not have reached a fair outcome.
The court of appeals’ analytical approach on appeal regarding Jackson’s conduct was
appropriate, albeit not surprising. The court distinguished his speech as not “purely procedural
matters” which are otherwise permissible under a narrow exception to Canon 3A.58
The
substantive nature of his factual and legal matters went to the heart of the case, and his opinion
egregious nature of exposing the merits and decision-making of one’s own case currently going through an appeals
process.
57
Schwartz, supra note 50.
58
Microsoft Corp., 253 F.3d at 48. See CODE OF CONDUCT FOR UNTIED STATES JUDGES Canon 3A(6) (Noting the
prohibition on public comment on the merits does not extend to public statements made in the course of the judge’s
official duties, to explanations of court procedures, or to scholarly presentations made for purposes of legal
education.)

12
on witness credibility, legal theory validity, and defendant culpability all dealt the merits of the
case.59
Further, the court found he violated Canon 3A(4), which ensures those who have “legal
interest[s] in a proceeding . . . the right to be heard” and otherwise banning ex parte
communications.60
By one account, Jackson had spent more than ten hours for a taped interview,
causing the court to assume these interviews were in essence, conversations.61
The court
discussed how neither of the parties could challenge the information, due to his embargo on the
interviews.62
It concluded his public comments “were not only improper, but also would lead a
reasonable, informed observer to question the District Judge’s impartiality,” and retroactively
disqualified him as to the imposition of the remedy.63
Nearly six years later, Jackson, no longer on the bench, defended the outcome of his
original decision, stating “[the] Microsoft persona I had been shown throughout the trial was one
of militant defiance, unapologetic for its past behavior and determined to continue as before.”64
He defended his extrajudicial actions and the outcome of his trial case, even though it was
remanded by the appeals court and later settled. A question continues to circle however: why
discuss a pending case, knowing it violated judicial canons? He may have believed his
comments to be ultimately permissible, or alternatively believed that the close-door interviews
would be confidential until the case truly completed. The Circuit Court was right to disqualify
59
Microsoft Corp., 253 F.3d at 48.
60
Id.
61
Id.
62
Id. at 45.
63
Id. at 50-51.
64
Anne Broache, Former judge defends his bid to break up Microsoft, CNET NEWS (June 21, 2005 8:15 AM PDT),
http://news.cnet.com/Former-judge-defends-his-bid-to-break-up-Microsoft/2100-1014_3-5755593.html. See
generally The Thomas Penfield Jackson Award for Civic Responsibility and Democratic Citizenship 2015, ST.
MARY’S COLLEGE OF MARYLAND CENTER FOR THE STUDY OF DEMOCRACY (January 28, 2015), http://www.smcm.
edu/democracy/2015/01/thomas-penfield-jackson-award-civic-responsibility-democratic-citizenship-2015/ (Judge
Jackson served on the St. Mary’s College Board of Trustees in 2001 and 2002. He passed away in 2013. In his
honor, The St. Mary’s Center for the Study of Democracy set up The Thomas Penfield Jackson Award for Civic
Responsibility and Democratic Citizenship, an annual award honoring “his lifetime of service and his commitment
to” the Center.).

13
him retroactively. These circumstances were extreme and did not contribute to either the public’s
knowledge, but instead eroded confidence in the independence of the federal judiciary.65
B. Judge Shaw and the Congressman
In 2006, Representative for Missouri’s First congressional district, William Lacy Clay Jr.
was running for his fourth consecutive term.66
On May 1st, Clay attended a naturalization
ceremony as part of his election campaign events.67
A news story in St. Louis’s most prominent
newspaper reported that District Judge Charles A. Shaw of the United States District Court for
the Eastern District of Missouri, commented to the 314 citizenship candidates saying Clay was a
“a tireless defender of voting rights for all citizens.”68
Clay then urged the soon-to-be citizens to
register to vote.69
Upon return for the swearing in, Judge Shaw said—according to the news
account, which Judge Shaw later disputed-- “for Congressman Clay to continue doing his good
work, he needs your vote, OK?”, then referring to the registration table just outside the
auditorium.70
Canon 5 of the code of conduct places a general prohibition on a judge’s engaging in
political activity. Federal judges, are life-tenured and un-elected, and thus meant to be free from
political and campaigning pressures. Specifically, Canon 5A prohibits “speeches for a political
organization or candidate, or publicly endorse or oppose a candidate for public office.”71
The
65
See also In re Hayes, 541 So. 2d 105 (Fla. 1989) (reprimanding a trial judge who gave a reporter his impressions
of the attorneys, witnesses, and jury in the midst of a murder trial)
66
U.S. House of Representatives / Missouri 01 / County Results, CNN.COM (2006), http://www.cnn.com/
ELECTION/2006/pages/results/states/MO/H/01/county.000.html.
67
Tim O’Neil, Judge Urges New Citizens to Vote for Rep. Clay Code of Conduct Bars Federal Judges from Making
Endorsements, ST. LOUIS POST-DISPATCH, May 1, 2006, at B2.
68
Id.
69
Id.
70
Id.
71
CODE OF CONDUCT FOR UNTIED STATES JUDGES Canon 5A (2014). See also Id. (“The term “political
organization” refers to a political party, a group affiliated with a political party or candidate for public office, or an
entity whose principal purpose is to advocate for or against political candidates or parties in connection with
elections for public office.”).

14
Court of Appeals for the Eight Circuit, which includes Missouri resides, years later upheld the
constitutionality of the ban on public endorsement.72
In upholding a similar Minnesota code
provision, it explained:
“[w]hen a judge or judicial candidate endorses another candidate, it
creates a risk of partiality toward the endorses party and his or her
supporters, as well as a risk of partiality against other candidates . .
. [E]ven if a particular endorsement does not serve to create an actual
bias toward or against a particular party, the act of endorsement
itself undermines the judiciary’s appearance of impartiality because
the public may perceive the judge to be beholden to political
interests.”73
A federal judge is to be impartial both in actuality and in appearance. Paramount, as explained
by the court, is the public’s perception of the judge.
Judge Shaw’s comments, while short of direction promotion, were an endorsement of a
candidate for public office. First, telling over 300 soon-to-be citizens that a particular political
candidate “needs your vote, OK?” certainly undermined his impartiality. New citizens, many of
whom may be non-native English speakers, and are new to American culture and mannerisms,
quite possibly interpreted the federal judge’s request as a slight-of-hand demand. Many
countries do not enjoy the free elections, separated branches of government, or ethical rules
found in the United States. From a new citizen and voter’s perspective, many of whom were
likely present, a judge is not only influential but a figure of authority. Few groups are less
72
Wersal v. Sexton, 674 F.3d 1010 (8th Cir. 2012).
73
Id. at 1025.

15
familiar with the unique freedoms and transparency American government customs. Many may
have also emigrated from locations where Shaw’s subtle language would not have meant advice
by a government official but instead direct coercion. While Shaw was likely not speaking for
devious purposes, the valuable appearance of impartiality was compromised on an
impressionable group of soon-to-be voters.74
He preceded his endorsement by emphasizing Rep. Clay’s record of tireless “defen[se] of
voting rights for all citizens,” giving greater weight to his ultimate endorsement. While, a
solitary statement of “he needs your vote, OK?” may be passed-over, the same statement
qualified with history of the candidate’s positive legislative record demonstrates more than mere
mistake. As one would at a campaign event, he in essence laid out a simple case why the over-
300 new voters should vote for Clay by supporting a conclusion with facts of record. Also in
doing so, he advocated not voting for another candidate. Therefore, not only was there a risk of
partiality towards Clay but also of partiality against other candidates, an evil expressly forbidden
by his appellate court75
A complaint was filed against Judge Shaw under the Judicial Misconduct Act referred to
above. The Chief Judge of the Court of Appeals for the Eight Circuit incorrectly designated
Judge Shaw’s comments as praise of Representative’ Clay’s public service. In reviewing the
complaint, the chief judge reviewed the printed news article as well as Judge Shaw’s response to
the complaint.76
Judge Shaw defended saying he emphasize the importance of voting.77
The
Chief Judge agreed, saying:
74
See Id.
75
See Id.
76
In re: Complaint of John Doe, Judicial Council of the Eighth Circuit, JCP No. 06-013, October 11, 2006
77
Id.

16
“[T]he judge’s prepared remarks . . . did not go beyond praise of [the
congressman’s] prior public service, praise that would have been
appropriate in introducing any elected official. In this context, the
judge’s unrecorded impromptu remark following the congressman’s
speech—whether quoted more accurately by the journalist or by the
judge in his response—did not convert the judge’s conduct in
presiding over this important judicial ceremony into the public
endorsement of a candidate for public office [and] clearly did not
constitute the type of willful misconduct in office that is prejudicial
to the effective and expeditious administration of the business of the
courts”
From his opinion, the chief judge gave giving great weight to the perspective of Judge Shaw, and
less to the complainant. He trusted Shaw’s pre-prepared remarks over the press’ account without
the investigation that the misconduct statute requires and, it would seem, improperly found facts
that were reasonably in dispute. The Chief Judge failed to see the true break of judicial
accountability that took place. Even if Shaw did praise the congressman’s service, he violated
the canons when he went far and beyond mere praise. The chief judge failed to try to learn
whether in fact Shaw said that Clay needs your vote, and, in essence said, whether or not he said
made no different.. Then by following the statement with a clarifying “OK?” he seemed to
assure the listeners understand the weight of his request. While the actions were not egregious,
the Chief Judge misapplied Canon 5A to these facts.
Judge Shaw’s comments threatened the appearance of the independence of the federal
judiciary. While only slightly, he demonstrated to hundreds of soon-to-be voters, that federal

17
judges can subtly endorse candidates they support, violating ethical canons in the process.
Unlike his claim to the Chief Judge, he in-fact failed to properly inform and educate those
present of the actual importance of voting: electing the candidate of one’s own choosing. He
missed an opportunity to educate new voters failing to contribute to public knowledge.
C. Judge Kopf and the Blog
Richard Kopf is a federal district judge, well known for his decision in Carhart v.
Ashcroft, where he found unconstitutional the Partial-Birth Abortion Ban Act of 2003.78
However, he is also known for his vocal, opinionated, and—at least for a sitting federal judge—
unorthodox personal blog: Hercules and the Umpire.79
In the aptly titled “The Who, the Why
and the Title of this Blog,” section of the blog, Kopf sets out his goals. He states “I am very
interested in the roles of judges and particularly the role of federal trial judges. So, that’s what I
will write about in this blog.” In further explaining the blog’s title, he iterates:
“I hope the title evokes an image of two poles. On the north, we
have the late great Ronald Dworkin’s all knowing judge,
Hercules. On the south, we have Chief Justice Roberts’ formulation
of the judge as umpire. I am interested in knowing (1) which pole
is the better and (2) whether there is a longitude and latitude between
those poles that locates the proper role of a federal trial judge.”80
Seemingly on cue for judge, he warns “I must not comment upon pending or impending matters.
I will strive hard to live up to that restriction.”81
In his “Copyright and stuff section” section, he
78
331 F. Supp. 2d 805 (D. Neb. 2004). See also Gonzales v. Carhart, 550 U.S. 124 (2007) (overturning the Eighth
Circuit’s affirmation of the United States District Court for the District of Nebraska decision).
79
Richard A. Kopf, HERCULES AND THE UMPIRE: THE ROLE OF THE FEDERAL TRIAL JUDGE, http://herculesand
theumpire.com/.
80
Kopf, The Who, the Why and the Title of this Blog, supra note 79.
81
Id.

18
elucidates further that “nothing I write is intended to comment upon pending or impending
judicial matters regarding my day job as a federal trial judge.”82
Other judges blog though; why
then focus on Kopf?83
Simply, Kopf is regularly surprising and entertaining. His posted
opinions cover topics not often discussed by other federal judges, and his posts frequently often
make news in the legal world.84
He discusses a huge variety of topics ranging from his advice to
young lawyers, the Supreme Court, his childhood love of sailing, and the St. Louis Cardinals.
Judge Kopf’s discussions are varied and insightful. This discussion covers two posts of
particular interest, due to their both controversial and questionable nature.
The first example occurred on March 24, 2015. Kopf published a blog post entitled “On
being a dirty old man and how young women lawyers dress.”85
He tells a story about how his
daughter Lisa attended her sister’s wedding in a “low-cut dress,” and at his insistence wore a
“demure white sweater . . . over her very revealing frock” instead.86
Continuing, he discusses a
female lawyer from his court. “She is brilliant, she writes well, she speak eloquently . . . she
wears very short skirts and shows a lot of her ample chest. I especially enjoy the last two
attributes.”87
He sets out three rules “that young women lawyers should follow when
considering how to dress for court: 1. You can’t win. Men are both pigs and prudes. Get over it.
2. It is not about you. That goes double when you are appearing in front of a jury. 3. Think about
the female law clerks. If they are likely to label you, like Jane Curtin, an ignorant slut behind
your back, tone it down.” Criticism amounted in the press, particularly in the close-by Omaha
82
Kopf, Copyright and Stuff, supra note 79.
83
See generally Nancy Gertner, Authors Nancy Gertner, SLATE, http://www.slate.com/authors.nancy_gertner.html
(detailing Gertner’s blog contributions to Slate).
84
See David G. Savage, Judge under fire for blog post on Hobby Lobby case, L.A. TIMES, July 9, 2014, http://www.
latimes.com/nation/la-na-blogging-judge-20140710-story.html.
85
Kopf, On being a dirty old man and how young women lawyers dress, supra note 79.
86
Id.
87
Id.

19
World-Herald.88
Kopf responded saying: “In the rough and tumble world of a federal trial
practice, it is sometimes necessary to see and react to that world as it is rather than as we wish it
would be.”89
The next case occurred after the Supreme Court case, Burwell v. Hobby Lobby Stores,
Inc., that held regulation requiring closely held corporations to provide health insurance coverage
for contraception violated the Religious Freedom Protection Act.90
Kopf responded saying “to
the average person, the result looks stupid and smells worse.”91
He continued, deeming the
decision “looks misogynistic because the majority were all men” and questioned whether if the
Court had not taken the case “I don’t think any significant harm would’ve occurred.”92
He
concluded promptly; “as the kids say, it’s is time for the court to stfu.”93
Criticism arose from
his blog post and he took a hiatus from blogging in January 2014.94
He received a sobering letter
from a “Nebraska lawyer . . . I have the highest respect for” simply titled: “Please stop.”95
Overall, Hercules and the Umpire contributes both constructively and uniquely to public
knowledge, but is tainted with questionable disclosures and unorthodox approaches for a federal
judge. The previous examples somewhat taint Judge Kopf’s otherwise standard blog for a well-
employed man in his 60s. The blog generally covers his work, perspectives on life, and always
refrains from delving into the issues or merits of his cases, circumvent violations of Canon
3A(6). By delving into his vacations, family and office-life; the public is granted a unique
88
Erin Grace, Grace: Reflecting on judge’s dirty old man’ blog post and his take on women lawyer’s attire, OMAHA
WORLD-HERALD, MARCH 26, 2014, http://www.omaha.com/news/grace-reflecting-on-judge-s-dirty-old-man-blog-
post/article_cc8b8913-c4e8-5cc2-8f05-a9c9c6eff65e.html#grace-reflecting-on-judge-s-dirty-old-man-blog-post-and-
his-take-on-women-lawyers-attire.
89
Kopf, Post Script to yesterday’s (infamous) post, supra note 79.
90
134. S.Ct. 2751 (U.S. 2014)
91
Kopf, Remembering Alexander Bickel’s passive virtues and the Hobby Lobby cases, supra note 79.
92
Id.
93
Id. (linking the Urbandictionary.com definition to “stfu”).
94
See Savage, supra note 84.
95
Kopf, Please stop, supra note 79.

20
perspective into the working-life of a senior-status federal judge. Further, his wisdom serving
from the bench for over 20 years is consistently evidenced from constructive posts where he
offers his viewpoint on the legal issues of the day.96
His insight is valuable, and indeed
effectively contributes to the public’s knowledge of the judiciary and the very-inner thoughts of a
judge.
However, Kopf’s views on how young female lawyers choose to dress in-court detracts
from his court’s and litigants’ confidence in the judiciary’s integrity. Canon 1 of the Code of
Conduct requires “A judge should maintain and enforce high standards of conduct and should
personally observe those standards, so that the integrity and independence of the judiciary may
be preserved.” His view of female dress has minimal value in this respect, calling into question
his standards of conduct. It indeed demonstrates to young lawyers how their appearance will
shape the impression they make on the judge, which may be a contribution a judge best can
make, but made here in a poorly worded fashion.. His disclosure in this respect also reveals a
self-proclaimed old-fashioned mentality. However, in any other respect he isolates himself from
the respect of his female peers by delving into a topic that he draws few constructive conclusions
about, and has little evidence to support. Comments such as this cast into doubt his
“temperament” so as to create an appearance of impropriety.97
Suggesting to women how to
dress while confessing to being an “old dirty man” does little but ruffle the feathers of his
readers, and likely many female attorneys in his court. The post does not expressly violate
Canon 1, but certainly casts his required “high standard of conduct” into question. Finally, his
compliance with Canon 3A(3) requiring “a judge [to] be patient, dignified, respectful, and
96
See Kopf, Critical advice for young solo criminal defense lawyers, supra note 79.
97
CODE OF CONDUCT FOR UNTIED STATES JUDGES Canon 2A cmt. (2014).

21
courteous to . . .lawyers” is in question. Admitting publicly special “enjoyment” from female
lawyers in his court is certainly is lacking in dignity.
Further, his post featuring an ultimate dismissal of the Supreme Court with an explicit
and vulgar acronym, fails to capitalize on his unique position to inform the legal world. He
analyzes little, and delves into few legal ramifications or explanation of details. As a federal
judge he could have offered constructive criticism, but instead only questioned potential biases
of the majority-justices. It is possible he also preemptively disqualified himself from any
litigation concerning Hobby Lobby or religious exemptions. Canon 3C(1)(a) requires
disqualification where a judge has a “personal bias or prejudice concerning a party . . .”98
While
he demonstrates from his blog post, a clear disappointment and frustrations with the Supreme
Court, his attitude towards the parties are equally dismissive.
Kopf’s unique contribution to the legal-blogosphere is encouraging while interesting.
Since a hiatus, he has returned to blogging regularly, albeit his discussions have caused less
controversies. When asked on the effect of legal blogs on the profession, he responded: “My
guess is that legal blogs will partially fill the “practicality” gap between the legal academy and
the rest of us. Blogs provide a unique opportunity for law teachers to directly influence the
development of the law in near real time.”99
Judges today face new technology, and new
possibilities to positively impact the public on behalf of the judiciary.100
His approach is one of
personal disclosure and open, even blunt honesty. Ultimately, Judge Kopf’s blog effectively
achieves the goal of adding to public legal discourse.
98
CODE OF CONDUCT FOR UNTIED STATES JUDGES Canon 3C(1)(a) (2014).
99
Judge Richard Kopf (D. Nebraska): Legal Blogs Will Fill the Practicality Gap, LAW X. 0 (April 18, 2006), http://
3lepiphany.typepad.com/3l_epiphany/2006/04/judge_richard_k.html.
100
See Infra 29-30.

22
D. Judge Posner and the Justice
Judge Richard Posner is a federal judge on the United States Court of Appeals for the
Seventh Circuit.101
Also a blogger, writer, speaker, and theorist; Judge Posner is one of the most
well-known American judges and legal thinkers of modern times. No stranger to off-bench
commentaries, he frequently publishes articles critical of courts, the government and other legal
scholars.102
Of interest is his critique of Supreme Court justice, Antonin Scalia. Judge Posner
and Justice Scalia—both appointees of President Reagan and both are considered, within the
limits of the term, “conservative--have traded remarks and criticism over legal rules and judicial
decision-making. Posner emphasizes making pragmatic legal opinions that apply to the real
world, whereas Scalia is a proponent of originalism.103
Unlike Judge Kopf, who addressed
justices in general, Judge Posner particularly singled out Judge Scalia in 2012. Contributing
majorly to the still-ongoing feud, he published an article titled “The Incoherence of Antonin
Scalia.”104
In June 2012, Justice Scalia and Byran Garner published the book “Reading Law: The
Interpretation of Legal Texts.” In response, Posner published his article in the New Republic on
August 24, 2012. His argues ultimately that Scalia’s reliance on textualism and dictionary
interpretations to read the law, is anything but a claimed “’objective’ interpretive methodology,
101
Seventh Circuit Judges, UNTIED STATES COURT OF APPEALS SEVENTH CIRCUIT, http://www.ca7.uscourts.gov/
contact.htm#posner.
102
See also Joel Cohen, An interview with Judge Richard A. Posner, ABA JOURNAL (July 2, 2014), http://www
.abajournal.com/magazine/article/an_interview_with_judge_richard_a._posner/?utm_source=maestro&utm_medium
=email&utm_campaign=weekly_email (confessing that “in my 32 years and 6,000 argued cases, I think there have
been only two motions to recuse me.”).
103
Corey Adwar, The Story of Why One Of America’s Most Renowned Judges is Feuding With Antonin Scalia,
BUSINESS INSIDER (July 2, 2014), http://www.businessinsider.com/judge-richard-posner-criticizes-antonin-scalia-
2014-7.
104
Richard A. Posner, The Incoherence of Antonin Scalia, NEW REPUBLIC, September 13, 2012,
http://www.newrepublic.com/article/magazine/books-and-arts/106441/scalia-garner-reading-the-law-textual-
originalism.

23
but instead leads to a “pattern of equivocation exhibited throughout [the] book,” finding it
ultimately “unconvincing.”105
He first claims Scalia is not a true textual originalist. In United
States v. Eichman for example, he finds odd that Scalia voted unconstitutional a statute
forbidding the burning of the American flag, as an abridgment on the first amendment right to
freedom of speech.106
Posner argues, the original eighteenth-century concept of freedom of
speech to be substantially narrower than today, and “burning cloth” to fall outside the scope of
speech. He concludes Scalia’s voting was “exceedingly unoriginalist.”
In examining the book, Judge Posner takes on several of Scalia’s examples. As to
Brown v. Board of Education, Scalia claims that “recent research persuasively establishes [the
ruling in Brown that separate but equal is not equal] was the original understanding of the post-
Civil War Amendments.”107
Posner instead claims Brown “a singular embarrassment for textual
originalists that the most esteemed judicial opinion . . . . is nonoriginalist” and that “had the
provision been thought, in 1868, to forbid racial segregation of public schools, it would not have
been ratified.”108
His disagreement continues towards object to Scalia’s reliance on finding the
meanings of words in dictionaries and “omitting contrary evidence.”109
Posner takes issue with
Scalia’s applauding White City Shopping Center, LP v. PR Restaurants LLC, where the court
found burritos and tacos were not defined as “sandwiches.”110
“Scalia and Garner stop there, as
if that dictionary reference were the court’s entire decision, thus confirming the use of the
dictionary as a guide to the meaning of legal documents. But the court had not stopped with the
dictionary.”111
Posner then delves into the court’s analysis and how the dictionary definition was
105
Id.
106
496 U.S. 310 (1990).
107
347 U.S. 483; Posner, supra note 104.
108
Posner, supra note 104.
109
Id.
110
21 Mass. L. Rep. 565 (Mass. Super. 2006); Id.
111
Id.

24
in fact not used by the court, concluding “Dictionaries are mazes in which judges are soon lost.
A dictionary-centered textualism is hopeless.”112
Far from violating canons of the code of conduct, Posner’s dialogue with Justice Scalia is
a constructive and valuable exchange between two influential legal scholars. Even though the
code of conduct does not apply by its terms to Supreme Court justices, and applies to the judges
it covers only as guidance, but we can still analyze Scalia’s behavior with the code as a guide.113
Even so, disagreement between judges of different courts is expected and not barred by the
canons. Further, constructive criticism and explaining theories of legal interpretation may even
work to achieve the goal of Canon 1; “an independent and honorable judiciary [ ] indispensable
to justice in our society.”114
Both Posner and Scalia are influential in the legal world, and
experienced judges. When Posner explains his own methods while critiquing another, he
contributes to an honorable judiciary by demonstrating the active and constructive roles judges
take in legal thought. Further, Canon 3A(1) requires a judge to “maintain professional
competence in” the law.115
In his article above, Posner demonstrates knowledge and research,
far exceeding mere “competence.”
Posner’s criticism of a judge of a higher court, is proper and appropriate behavior for a
federal judge. The Canons do not forbid or discourage a Circuit judge from criticizing openly a
Supreme Court justice. His article is consistent with Canon 4A(1), which encourages judges to
write on activities concerning the law. Posner’s many articles, books and speeches are protected
under this same canon. Also, Canon 3A(1) in fact requires a judge to “be faithful to . . . the
law[,] and should not be swayed by . . . fear of criticism.” Posner then should not dissuaded
112
Id.
113
Supra at 3.
114
CODE OF CONDUCT FOR UNTIED STATES JUDGES Canon 1A (2014).
115
Id. at Canon 3A(1) (2014).

25
from others criticizing his opinion, even when Scalia himself responds.116
Expertly, Posner does
not mention his particular opinion on any parties involved in the cases. Unlike Judge Kopf, who
displayed somewhat of a bias against Hobby Lobby, Posner navigates only by discussing legal
interpretation. Thus, efficiently he discusses cases without possibility of disqualification on any
future actions in his court.
Judge Posner later responded in an interview to his disagreement with Justice Scalia. He
stated simply “I also happen to disagree with Justice Scalia’s philosophy of originalism. I think
that’s legitimate criticism.”117
Indeed his disagreement was a permitted and constructive
exercise of off-bench writing. On the nature of his frequent off-bench commentaries, Posner said
“I do think at some point a judge’s out-of-court public comments become ethically improper.
There are genuine confidences one has to respect. But I don’t see any problem with writing a
book or an article that doesn’t stir up scandal or make accusations, that is dispassionate and
responsible.”118
Posner serves as a model of how judges who wish to give extrajudicial opinions
should act. He demonstrates an expert understanding of what judges are permitted to discuss as
well as what is appropriate. His commentaries do not call the independence or the integrity of
the judiciary into question. He exemplifies the importance of the public’s confidence in judges.
While judges may be permitted to discuss broad areas, Posner understands scandals and
accusations degrade this confidence of the judiciary’s integrity.
116
See Terry Baynes, Antonin Scalia: Judge Richard Posner Lied in Judicial Philosophy Criticism, HUFFINGTON
POST POLITICS (September 29, 2012), http://www.huffingtonpost.com/2012/09/18/antonin-scalia-richard-
posner_n_1892286.html.
117
Cohen, supra note 102.
118
Id.

26
E. Judge Griffin and the President
Discussion of the off-bench conduct of state judges is worth certain exploration. While
the canons of the Code of Conduct for United States Judges apply strictly to federal judges many
analogous state codes are substantially similar or mirror the federal counterpart; in fact the
federal code is based on earlier model codes promulgated by the American Bar Association119
Even so, state judges face unique obstacles. First, most state judges are elected.120
State judges
of course, have latitude towards campaign speeches and maintaining their judgeships.121
However, when campaign-season is in the distance, state judges still are held to high standards of
judicial ethics of their extrajudicial conduct. This leaves an open discussion as to how both sides
handle the challenges of off-bench commentary. Next, state judges hold a unique positions
different from those of federal judges. Likely presiding in their home-state, handling local and
state cases and controversies, and earning a smaller salary than their federal counterparts; state
judgeships are, in the vernacular, “closer to the people.” A federal district or circuit judge is
presidentially nominated, life-tenured, and hears cases of in and out-of-state players. . How do
these differing “levels” of judgeships affect off-bench conduct? What follows is a single
application of the federal code to a case of a state judge conduct.
In 2007, Circuit Judge Wendell Griffen of the 5th Division in the Sixth Judicial District
of Arkansas faced disciplinary action by the Arkansas Judicial Discipline and Disability
Commission for a series of speeches and remarks he made critical of President George W. Bush
and his administration.122
He claimed the federal government’s response to Hurricane Katrina in
119
See also CODE OF CONDUCT FOR UNTIED STATES JUDGES Compliance with the Code of Conduct (2014)
(explaining code does not apply to part-time judges, judges pro tempore, or certain retired judges).
120
Supra at 5.
121
See Id.
122
Doug Smith & Fritz Brantley, Removing the gag, ARKANSAS TIMES (November 1, 2007), http://www.arktimes.
com/arkansas/removing-the-gag/Content?oid=865666&showFullText=true.

27
New Orleans was ineffective and rooted in racism.123
Further he criticized President Bush for
nominating John. Roberts as Chief Justice of the United States.124
He also expressed
“wholehearted support” for a minimum wage increase.125
On the then-current war in Iraq, he
was quoted saying ““Everything I know about right and wrong . . . . everything my parents told
me about truth and lies, everything I understand about God, tells me that this is wrong.”126
Following a complaint, the commission charged him with “damaging the public confidence in
the integrity and impartiality of the judiciary.”127
The Arkansas code of judicial conduct, like
many state codes, mirrors in many ways, the federal code of conduct. Canon 1.2 of the Arkansas
code requires “A judge [to] act at all times in a manner that promotes public confidence in the
independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the
appearance of impropriety.” Canon 2 of the federal code similarly requires “a judge [to] avoid
impropriety and the appearance of impropriety in all activities” and at Canon 2A “a judge [to]
respect and comply with the law and should act at all times in a manner that promotes public
confidence in the integrity and impartiality of the judiciary.” However, unlike the federal code,
Arkansas Rule 2.4 forbids “political [. . .] or other interests or relationships to influence the
judge’s judicial conduct or judgment.”
Many of Griffen’s statements would be allowed whether he was a federal or state judge,
according to the Supreme Court Case Republican Party v. White.128
The court found prohibition
123
Id.
124
Id.
125
ACLU Files Legal Statement on Behalf of Appellate Court Judge Wendell Griffen, ACLU (July 10, 2007),
https://www.aclu.org/news/aclu-arkansas-supports-judge-facing-discipline-criticizing-bush-administration?redirect
=free-speech/aclu-arkansas-supports-judge-facing-discipline-criticizing-bush-administration.
126
Adam Liptak, When a Judge Offers an Opinion Away From the Bench, N.Y. TIMES, April 16, 2007, http://www.
nytimes.com/2007/04/16/us/16bar.html.
127
Adam Liptak, Arkansas: Judge Allowed to Speak Out, N.Y. TIMES, October 2, 2007, http://www.nytimes.com
/2007/10/02/us/02brfs JUDGEALLOWED_BRF.html?ex=1349064000&en=5b1fe02c6081311a&ei=5124&partner
=permalink&exprod=permalink.
128
536 U.S. 765 (2002).

28
of judicial candidates to express their views on disputed legal and political issues to be
unconstitutional. Thus, Griffen explaining his views on the federal government’s response to
Hurricane Katrina in Louisiana, the war in Iraq, or minimum wage laws logically fall under this
exception and are permitted under his first-amendment free speech rights. However, as a federal
judge, Griffen’s escape from disciplinary charges may not mean he evades future recusals in
later cases. He would perhaps need to disqualify himself if parties before him were the Bush-
administration, certain governmental bodies thereof, or those who are both outspoken Bush-
supporters and republicans.129
Further, cases involving wage disputes or contractual issues
involving wages, not otherwise before an administrative body such as the NLRB, would require
his disqualification as well.
James A. Badami, of the Arkansas commission was quoted questioning “If you are a
staunch Republican and a Bush supporter and have to come before this judge . . . and this judge
has now said some terrible things about Bush and the Bush administration — and now those
people are having to appear before him?” However, the commission ultimately dropped the
charges against the judge.130
Griffen’s actions & ultimate vindication demonstrates two key
points about extrajudicial commentaries, both federal and state. First, judges have wide latitude
to comment and lend opinions on a variety of issues. Before 2002 and White, it was undecided
whether judges, either state or federal could make extrajudicial comments on controversial
issues. Today, as evidenced by Griffen, and even Judge Kopf, freedom of speech in this regard
has been loosened significantly. Second, state judges are very much like their federal
counterparts regarding their abilities to comment off-bench. As state codes of conduct are often
129
See Liptak, supra note 126.
130
Debra Cassens Weiss, Opinionated Judges’ Suit Against Discipline Body Tossed, ABA JOURNAL (November, 5
2007), http://www.abajournal.com/news/article/opinionated_judges_suit_against_discipline_body_tossed; Liptak,
supra note 113.

29
similar to or even the same as the federal version, the outcomes of disciplinary procedures are
similar.
V. Social Media and Concluding Thoughts
Robert Dworkin, noted legal scholar and philosopher met with several other noted legal thinkers
in Bonnieux, France in 2000. When discussing justice and media in the information age he
stated:
“Most legal reporting is deplorable, I agree. Judges do not make it
better by withdrawing institutionally−by discouraging dissenting
opinions that journalists will seize on, for example. The only thing
that they can do, so far as I can now see, it try to redirect attention,
away from personality and background, which journalists find easy
to report, and toward argument, toward intellectual disagreement,
which journalists now find so hard. Judges could help by writing
more lucid, less legalistic opinions that bring principle and
disagreements over principle more to the surface.”131
Dworkin’s point here is two-fold. Judges must steer the public conversation toward intellectual
disagreement. Additionally, judges can help shape this conversation through their opinions. He
saw legal reporting was lacking, and thus placed upon the judges an affirmative duty to remedy
the public’s perception of the law and judiciary. While stated at the turn of the century,
Dworkin’s argument remains viable today even with new digital technologies and the
omnipresence of the internet.
131
JUDGES IN CONTEMPORARY DEMOCRACY 268 (Robert Badinter & Stephen Breyer eds., New York University
Press 2004) [hereinafter JUDGES IN CONTEMPORARY DEMOCRACY].

30
First, through new digital media, judges have a perfect opportunity to advance the
conversation about the law and judiciary in ways not previously possible. As Dworkin iterated,
legal reporting can be lacking in many ways. Most legal reporters did not attend law school, and
nuances or ramifications of individual cases and decisions may often be obscure to those not
legally trained. Thus, the legal community is responsible to ensure the public understands and
appreciates the law. Judge Kopf, works to bridge the gap between the courts and “the rest of
us.”132
In particular, he correctly saw blogs as unique opportunities for directly influence on
development of the law.133
Through his online presence he fills in the otherwise blank space in
the public knowledge of the life of a judge. Other judges including the aforementioned Judge
Posner and former-Judge Nancy Gertner also have influenced the online conversation by
blogging as well.134
Theirs are opinions more strictly on legal and jurisprudential issues, but
nevertheless important. In taking advantage of these online resources, judges impact not only
more of the legal world but those in the general public as well, interested in the work of the court
that affects their livelihood.
Second, the unique positions federal judges occupy means they have unique voices to add
to the public discourse Whether Judge Jackson believed he was justified in discussing the merits
of U.S. v. Microsoft in this respect is immaterial. The press, the legal community and the public
was interested and even captivated. He spoke at events, colleges, and occupied the press for
hours at a time.135
Further, Judge Griffin’s views on the President and his administration,
minimum wage, or the War in Iraq grabbed the attention of his local Arkansas constituency.
132
Supra at 21.
133
Id.
134
See Gary Becker & Richard Posner, THE BECKER-POSNER BLOG, http://uchicagolaw.typepad.com/beckerposner/;
Gertner, supra note 83.
135
Supra at 10.

31
Even Judge Shaw’s seemingly-minute endorsement of a political candidate garnered the interest
of the St. Louis press. Judges are important, their words influential. What they choose to say in
public, outside of their courtrooms can captivate more than just the legal world. Speeches,
books, and other traditional media is appropriate. However, full embrace of the digital realm
through blogs, and articles ensure that “principle and disagreements over principle” are truly
brought to the surface and the public mind.136
Federal judges through their off-bench commentaries have contributed constructively to
public knowledge since the 1700s. Also at times, these speeches and writings have caused
questions as to the integrity and impartiality of the judiciary. The codes of conduct both federal
and for the states offer wide latitude for judges to add to the public intellectual discussion.
Taking advantage of this limited freedom of speech is a skill understood and mastered by some
such as Judge Posner, while escaping others.
136
JUDGES IN CONTEMPORARY DEMOCRACY at 268.

Off-Bench Commentaries of Federal Judges A Case Study

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