As readers of this blog know, a lawyer I respect sent me a thoughtful and impassioned letter calling upon me to quit blogging. He said I was doing more harm than good. I told him I would seriously consider his suggestion. With his permission, I posted his letter and sought advice.
After reading every comment I could get my hands on about whether I should continue to blog (including over 500 blog comments of all sorts, especially critical comments from law professors such as those found here and here, lots of e-mails going both ways but more than a few from experienced lawyers agreeing with my friend, contrasted with spirited support from prominent federal practitioners like that found here and here, together with encouragement from two Nebraska state trial judges and two federal district judges from other districts*) and after a sincere and thorough evaluation of my motivations in writing this blog, I have decided to continue.
The quotation set forth above** provides the best explanation I can give for my decision. I care deeply about federal judicial transparency, I don’t see much of that and if I quit there would be even less of it and none of it from federal district judges. The implicit assumption of the thoughtful lawyer who wrote me is that mystery and mythology are better for the legal profession and the judiciary than transparency, particularly when the transparency revealed is raw. I profoundly disagree.
On the contrary, that thinking has brought both the legal profession and the judiciary to the brink of disaster. In these polarized times, why should anyone trust us if we judges, particularly federal judges, are not utterly open to examining our motivations and mistakes before the public for whom we serve? Law is not politics, but that assertion now requires proof, not mere belief.
I make one and only one promise. As in the past, I will always try to write frankly, in good faith and consistent with my ethical obligations.*** But candor does require a painful admission.
Like the gross Sancho Panza, I have in the past, albeit inadvertently, sometimes played the earthy and profane foil to the mad knight. In so doing, I allowed myself to become a caricature rather than the teacher of transparency that I aspired to become.
Truly, I will try to do better.
*A federal district judge from another district encouraged me to “keep it up” but “tone it down.”
**While this quote is frequently attributed to Plato, some scholars doubt whether he is actually responsible for it. See., e.g., here.
***Compare David Savage, Judge under fire for blog post on Hobby Lobby, LA Times (July 10, 2014) (discussing ethics concerns regarding my post) with Code of Conduct for United States Judges, Canon 1 Commentary (“The Canons are rules of reason. They should be applied consistently with constitutional requirements, statutes, other court rules and decisional law, and in the context of all relevant circumstances. The Code is to be construed so it does not impinge on the essential independence of judges in making judicial decisions.”) (Last revised March 20, 2014) (Transmittal 02-016); Code of Conduct for United States Judges, Canon 4A(1) (“Speaking, Writing, and Teaching. A judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice.”) (Last revised March 20, 2014) (Transmittal 02-016); Code of Conduct for United States Judges, Canon 4A(1), Commentary (“Complete separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the society in which the judge lives. As a judicial officer and a person specially learned in the law, a judge is in a unique position to contribute to the law, the legal system, and the administration of justice, including revising substantive and procedural law and improving criminal and juvenile justice. To the extent that the judge’s time permits and impartiality is not compromised, the judge is encouraged to do so, either independently or through a bar association, judicial conference, or other organization dedicated to the law.”) (Last revised March 20, 2014) (Transmittal 02-016); Committee on Codes of Conduct, Advisory Opinion No. 112, (Use of Electronic Social Media by Judges and Judicial Employees) (March 19, 2014) (among other things, setting forth various cautions and considerations when a judge uses social media including blogs) (pp.112-1 through 112-6 of original; PDF pp. 226-231) (Transmittal 02-015). I served on the Codes of Conduct Committee for six years and I take ethics matters seriously. Indeed, I considered long and hard before I decided to blog. As a senior district judge, I came to the conclusion that none of the strictures of the Code or other ethics pronouncements of the Committee barred my blogging efforts although I remained subject to the Code. That remains my position. I add this:
Many federal judges devote time to public service and educational activities. They have a distinguished history of service to the legal profession through their writing, speaking, and teaching. This important role is recognized in the Code of Conduct, which encourages judges to engage in activities to improve the law, the legal system, and the administration of justice.
Rules and Polices; Codes of Conduct; Code of Conduct for United States Judges, introduction to web site on ethics presented by the U.S. Courts (last accessed July 11, 2013).