Such bluntness evokes the 2004 remarks by Judge Guido Calabresi – former Yale Dean. Calabresi said at a conference that George W. Bush should not be re-elected, that he had become President through the “illegitimate acts of a legitimate institution”. Calabresi later apologized for his remarks, was admonished by Chief Circuit Judge John Walker (a first cousin of Bush 42). Walker’s admonishment was ratified by a 2005 judicial discipline report of the 2d Circuit, 404 F. 3d 668.
While the code of ethics for federal judges allows for public discussion of the law, it prohibits political activity, especially when it deals with candidates for office. U.S. District Judge Lynn S. Adelman’s article said conservative justices are “undermining democracy” while President Donald Trump’s “temperament is that of an autocrat,” Republicans are “focused on serving the wealthy,” and GOP senators display “zealous partisanship [reminiscent of] those fervent defenders of slavery who pushed the South into the Civil War.”
“A judge is making public remarks that can be construed as opposing a sitting president who is running for re-election,” said Arthur Hellman, a University of Pittsburgh law professor who has advised Congress on judicial ethics. “The whole theory of judicial impartiality is not that judges have no views on political and social issues, but that they can separate those personal views from what they do as judges. If judges go out in public and start talking about their political and social views, I think people will legitimately wonder, can they separate them?”
Judge Adelman stood by his article in an interview with Law360 Wednesday.
“Judges are encouraged to talk about current legal issues and problems,” he said, adding that it is “certainly reasonable and important to talk about” Supreme Court decisions.
Nancy Gertner, a former federal judge in Massachusetts who teaches at Harvard Law School, told Law360 that such commentary is part of academic debate.
“You can speak critically about the administration of justice,” she said. “There are many of us who are law professors who have written critically about [a] decision. This is within the zone of what it’s appropriate for a judge to talk about.”