Topic: Professions & Institutions

A Judge’s TV Tactic

It is a tactic so familiar on lawyer TV shows that most Americans think it is acceptable courtroom practice. The attorney makes a statement that is a blatant violation of acceptable examination rules, suggesting a theory not properly introduced, for example, or injecting the lawyer’s personal opinion, and then immediately withdraws it the second opposing counsel objects. In real life, this maneuver will result in a mistrial, a reprimand from the bench, or possibly bar association discipline. The damage is done before the withdrawal, and that was the attorney’s intent all along. Most judges aren’t fooled. The tactic is unethical, and it usually doesn’t work…except on TV.

Maybe Second Circuit U.S. Court of Appeals Judge Guido Calabrese has watched too many episodes of “The Practice.” Despite the fact that judges are forbidden, under their ethics rules, from making partisan political statements and also from publicly impugning the integrity of colleagues, Calabrese gave a speech to a group of lawyers and law students that compared the decision of the US Supreme Court ending the contested 2000 election to the initial rise of Adolph Hitler and Mussolini. After criticizing the performance of the Bush administration as “incompetent,” the judge said that turning Bush out of office was imperative.

Not surprisingly, Judge Calabrese’s remarks were reported; not surprisingly, they sent Bush supporters into apoplexy and the gang at into spasms of ecstasy. Of more concern to Calabrese was the response of the Chief Judge of his court, who made it clear to his colleague that those accusing the judge of crossing the ethical line had the rules on their side.

“Withdrawn,” said the judge, in effect. In a one-page apology released to the press and the court, Calabrese wrote :

“Although what I was trying to do was make a rather complicated academic argument about the nature of reelections after highly contested original elections, that is not the way my words, understandably, have been taken. I can also see why this occurred, despite my statements at the time that what I was saying should not be construed in a partisan way.”

This judge is one of America’s most accomplished legal scholars, yet he professes to be surprised that the following statement was taken to be partisan:

“Somebody came to power as a result of the illegitimate acts of a legitimate institution that had the right to put somebody in power… that is exactly what happened when Mussolini was put in by the king of Italy. . . . That is what happened when Hindenburg put Hitler in… It seems to me that one of the things that is at stake is the assertion by the democracy that when that has happened it is important to put that person out regardless of policies, regardless of anything else.”

Not only does the statement unequivocally call for the defeat of President Bush: it also implies that a decision of the US Supreme Court was “illegitimate.” It is a black letter violation of the judicial code, and anyone who doesn’t think Calabrese knew it at the time should hold on to his Enron stock in case there’s a rebound.

“I’m a judge, and so I’m not allowed to talk politics,” the judge told the group. Wink wink, nudge nudge. Yes, he knew he was violating his professional ethics, and he knew something else: as a much respected and beloved jurist, a former Dean of Yale Law School and one of the most articulate liberals on any Federal court, Calabrese only needed to apologize to avoid sanctions. And why not? He got in his shot at Bush. He made his contempt of his conservative Supreme Court colleagues clear. And even though he damaged the image, integrity and independence of the Federal judiciary (some might say the myth of the independence of the Federal judiciary) with his attack, he could count on the support of those who agree with his assessment and those who argue that a lifetime of distinguished service should earn the right to be forgiven “one mistake.” ( Ethics Scoreboard calls this “The Ray Flynn Defense,” after the former Vatican ambassador’s early public statements on behalf of Cardinal Law.) And that’s exactly what has happened.

So congratulations, Judge Calabrese. The trick worked, just like on TV. And just like on TV, it was unethical, deceitful, and degrading to the legal profession. We now know that even the most eminent jurists may be willing to throw their profession’s principles to the winds when political passions rise. It is not a comforting thought.

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