Ethics of Judicial Blogging

A thoughtful commentator responded to the announcement of this blog at SL&P by stating:

I am not really thrilled with the idea of an active judge blogging publicly. One can author a book or even appear (rarely) on a television show and not worry about being taken out of context, but with blogging on a relatively frequent and periodical manner, the judge runs the risk of biasing his cases. At the very least, some keen-eyed trial attorneys and prosecutors will glean every word to see if there is any potential subject, phrase, or even word in which to declare mistrial or force the judge to recuse. While judges are human and have rights, society has reached a point where virtually every nuance is recorded in perpetuity via the Internet. Hopefully, the good judge will be very careful in his blogging career.

In my initial post, I stressed that I would not blog about pending or impending matters.   However, the commentator’s concern suggests that I provide a bit more detail as I, too, share some of the commentator’s apprehensions.

First, before I began this blog, I thought a lot about the ethics of judicial blogging both during the six years I was privileged to serve on the Judicial Conference Committee on Codes of Conduct and otherwise.  I do not take the commentator’s ethical concerns lightly.

Second, I view blogging as short form scholarship.  For example, I do not believe that blogging is categorically different than writing law review articles.

Third, the Code of Conduct that applies to federal judges explicitly permits judges to “speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice.”  Canon 4(A)(1).  The commentary also provides:  “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 . . . .”

Fourth, I am big on judicial transparency.   That is why I am a supporter of making public the individual sentencing statistics of federal judges.  To me, the danger of revealing too much about the trial judge’s thoughts is less of a concern than revealing too little.

Fifth, the more information about trial judges that is publicly available to the legal profession generally the less courtroom regulars (like AUSAs and AFPDs) will have an advantage over those lawyers who come to court less frequently.  “Insider knowledge” distorts markets and legal systems alike.

Finally,  the last admonition of the commentator quoted above is a good one.  I should be careful, and I will try to do so.

PS  Shortly after the launch of this blog, I took my wife, who is on the mend after some very nasty cancer treatments, on a cruise to see the Panama canal.   Thus, the reason for the delay in posting.   Parenthetically:  Is this too much information (TMI)?  I don’t know.  But, as I say, I am big on transparency.

RGK

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