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Remarks by 9th Circuit liberal jurist Harry Pregerson in Henry Weinstein's story in the L.A. Times on Saturday have legal types talking. Pregerson was on the three-judge panel that blocked the recall election, and in the Times story he predicts the ruling will be vacated by a more conservative panel.
"You know who's on the panel, right? Do you think it's going to have much of a chance of surviving? I wouldn't bet on it," Judge Harry Pregerson said in an interview...."Judge Paez, Judge Thomas and I — we did the right thing," Pregerson said. "We're there to protect people's rights under the equal protection clause of the Constitution, no matter who's involved, and a lot of people don't like it. That's their problem, not mine."
That kind of candor, writes UCLA law professor Eugene Volokh, "is pretty clearly prohibited" by the Code of Conduct for U.S. Judges. For context: Volokh is generally conservative and recently discussed on his website that he votes a straight Republican ticket. But he cites the relevant code and makes a good non-partisan point. He's joined by Howard Bashman, the Philadelphia appellate lawyer behind the respected How Appealing blog:
It is extraordinarily unusual for a judge to speak to the press about the merits of a matter currently pending before his court.
Other surprised reaction -- and some outrage -- are linked on their blogs.
Anyone who read the legally vacuous nonsense put out by the majority in the most recent Supreme Court decision about affirmative action should not be suprised when lower courts do more of the same. Nor when their judges confirm what some may describe as their unfitness via a breach of common ethical practice such as this.
Posted by: EH at September 21, 2003 11:14 AMI think everyone should keep in mind that judges are human beings too. I suspect Judge Pregerson (an older gentleman) read all of the stories about his opinion being likely to be overturned and reacted too emotionally. I also suspect he is wrong. I am not an attorney, but I have worked for political consultants (and run a few small campaigns myself) and virtually every consultant I have spoken with has stated that if the election goes forward as scheduled, the counties using a punch card ballot will have a dramatically lower percentage (One Consultant estimated five percent) of their ballots counted. Thats not fair and shouldn't happen.
Posted by: Tom Kaptain at September 21, 2003 08:02 PM
of LA Observed
My uncle was state Supre,e Court judge back East, and I won a US Suprme Court case (Shea v Reno), so I think I know what I'm saying when I comment that Judge Pregerson's "sour grapes" was way out of line. However, he is not voting on the case, and he is within his rights - even within the context Prof. Volokh and the other guy invoke - to speak out. He will never have a chance to rule in this case again, so with his work behind him he has a constitutional right to express himself that overrides any ethical consideration, especially if he feels it is incumbent morally oupon him to do so. It just so happens he was dead wrong in getting the judiciary involved in an election which hasn't taken place yet. That the Supremes did so may make that precedent, but it was a wrong-headed and dangerous precedent that is damned bad for democracy.
Posted by: Joe Shea at September 21, 2003 09:50 AM