For Judges, a Year of Opinions Outside the Courtroom

, The Litigation Daily


Shira A. Scheindlin  Disctrict Judge for Southern Disctrict of NY
Shira A. Scheindlin Disctrict Judge for Southern Disctrict of NY

A thoughtful attorney once warned not to heap criticism on sitting judges, even though they can make for appealing punching bags. Unlike litigants, judges can't get on the phone with reporters and defend themselves, the attorney pointed out.

That advice isn't quite as applicable as it used to be. In the last year or so, several high-profile judges have given interviews to members of the media and written well-trafficked op-eds. A few, like U.S. District Judge Shira Scheindlin in Manhattan, commented on the furor over their rulings. Others, like Schendlin's colleague Jed Rakoff, chimed in on larger litigation trends. Two appellate judges, Richard Posner and Randall Rader, ever-so-delicately lobbed public criticisms at each other.

"I have the impression that more judges are speaking to the media about public issues in the last two or three years, though I can't quantitatively compare it to any other period," said Paul Michel, the former chief judge of the U.S. Court of Appeals for the Federal Circuit, in an interview.

There's also been a change in the type of comments judges are making. "It seems that various sitting judges have felt much freer to speak out on controversial issues — issues that touch on politics, or what congress and regulators are doing," Michel said. "That's very different than it was 10, 20, or 30 years ago."

Perhaps no judge gave more interviews in 2013 than Scheindlin, who famously ruled in August 2013 that the New York Police Department violated constitutional rights during "stop and frisk" searches. Scheindlin told reporters that the response of Mayor Michael Bloomberg's administration to her ruling had been "below the belt" and "disgraceful." In October, the U.S. Court of Appeals for the Second Circuit took the unusual step of removing Scheindlin from "stop and frisk" cases, holding that her public statements gave off the appearance of bias.

Rakoff, for his part, wrote a much-read piece for The New York Review of Books titled "The Financial Crisis: Why Have no High-Level Executives Been Prosecuted?" He also defended the migration of attorneys between government agencies and private law firms —a practice known as the "revolving door" — in a New Yorker piece.

Rader, the current chief judge of the Federal Circuit, sat down for a lengthy interview with Dan Levine of Reuters. Rader admitted that his court's recent six-part en banc ruling in CLS Bank v. Alice Corp. was a failure because no single opinion garnered a majority. Rader also co-wrote a op-ed on how fee-shifting can root out so-called "patent trolls."

Judge Diane Wood of the Seventh Circuit said in speeches and in an interview with the Litigation Daily that it's time to abolish the Federal Circuit's exclusive jurisdiction over patent law.

Posner also chimed in on patent law. In a July 2012 interview with Reuters, he questioned the value of smartphone patents, which happen to be at heart of cases he's volunteered to oversee. He also said at a Federalist Society event that the Federal Circuit "has trouble getting its act together," according to Reuters.

To be clear, the majority of judges still keep a low public profile, both locally and nationally. Even U.S. District Judge Richard Kopf in Lincoln, Neb., who maintains a personal blog, had this to say when contacted for this story: "Sorry but I don't give interviews."

Ethics rules give judges leeway to decide how to handle press inquiries. The Judicial Conference of the U.S. has issued a code of conduct, but that code doesn't offer much in the way of specific guidance. Judges can glean further guidance from the conference's advisory opinions, but those too are open for interpretation. "It's very hard to say that one judge has overstepped the bounds," Michel said.

Michel, incidentally, stepped down from the bench because he wanted to speak publicly about his pet causes, like the importance of including small-time inventors in the debate over patent reform. "I decided I couldn't talk about these things comfortably if I remained a sitting judge," he said.

While he was on the bench, Michel said he learned a rule of thumb from other judges: Feel free to speak up about issues affecting the judiciary, like judicial pay or court funding. But the closer you get to speaking about public policy and politics, the more cautious you should be.

"If I was in the gray zone, the suggestions was to just not say anything at all," Michel said. "The advice I got certainly seems to be different from where Judge Posner, Judge Rader, and others seems to be drawing the line for themselves."

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