Kopf: The Unexploded Landmine Buried Deep In The Codes of Conduct Committee’s Otherwise Excellent Opinion On Posner

There are two Codes of Conduct applicable to those who work in the federal judiciary. One is for employees and the other for judges. The Judicial Conference (the administrative governing body of the federal courts) has authorized its Committee on Codes of Conduct (the Committee[i]) to render advisory opinions about the judges’ Code, but only when requested by a judge to whom the Code applies.[ii]

I have enormous respect for the Committee, the members of the Committee, and the truly excellent work of the Committee. The Committee is comprised of 15 members appointed by the authority of the Chief Justice.[iii] The primary responsibility of the Committee is to issue confidential advisory opinions to judges regarding compliance with the judges’ Code. It toils in anonymity (most of the time), turning out thoughtful and confidential opinions very rapidly on a whole host of questions regarding the Code and related matters (like the issuance of certificates of divestiture[iv]).

There are two things one must understand about the Committee’s work. First, the Committee does not serve as the “ethics police.” Complaints against judges are handled through an entirely different and unrelated mechanism. See, for example, here. Second, the opinions of the Committee are advisory. While the judges’ Code is binding, the opinions of the Committee are advisory. Thus, every opinion of the Committee (of which I am aware) begins with this language:

Thank you for your inquiry. The Committee on Codes of Conduct (the “Committee”) is pleased to respond. This response is advisory only and based solely on the judgment of the Committee members. Many of the proscriptions in the Code of Conduct for United States Judges (the “Code”) are cast in general terms, and the Code is “to be construed so it does not impinge on the essential independence of judges in making judicial decisions.” Commentary to Canon 1.

Now I turn to the Committee’s opinion recently issued to Diane P. Wood, Chief Judge of the Seventh Circuit, about Richard Posner, formerly a judge of the Seventh Circuit, and the then-impending publication of his book entitled “Reforming the Federal Judiciary: My Former Court Needs to Overhaul Its Staff Attorney Program and Begin Televising Its Oral Arguments.”[v]

We know of the August 7, 2017,[vi] opinion because Chief Judge Wood did something extraordinary. She issued a statement on October 11, 2017, and appended the Committee opinion to the statement for all to read.[vii] You can find the statement and the opinion here.

Here is the concluding paragraph of her statement:

Had Chief Judge Wood wished to keep the letter confidential, she could have done so. The Committee provides confidential ethics advice to judges and judicial employees upon request, and does not make the response public but leaves it to the discretion of the recipient to use the advice as he or she deems appropriate. This letter, however, is of general importance and interest, not only to the members of the judiciary in the Seventh Circuit but also to the public at large. It helps to explain what is, and what is not, public; it sheds light on matters that might be relevant to the Judicial Conduct and Disability norms; and it provides guidance to past, present, and future members of the Judicial Branch. It is therefore being posted to the Seventh Circuit’s public website so that all interested persons can benefit from the Committee’s advice.

Statement On Confidentiality of Court Materials, at p. 2.

The opinion, in which Posner is not named, dealt with the question of a judge writing a book that disclosed internal non-public information about a court. The Committee described the inquiry this way:

More specifically, your inquiry states that an appellate judge in your circuit is in the process of completing a book on the institution of the Staff Attorney’s Office in the federal courts of appeal. The book is expected to be published in the fall of this year, and you indicate that the authoring judge will be entitled to collect royalties. Your understanding is that the book will pay special attention to the Staff Attorney’s Office in your circuit, but that it will also contain information about many of the other circuits’ offices. You include in your inquiry a description of the book in question, which description was written by the authoring judge. You identify the following excerpt from the description and note your concern, in particular, with the italicized language:

The book contains very detailed critiques of a number of bench memos and draft orders by our current staff attorneys, who are in fact [a] mixed lot—some very good, some handicapped by not being able to write clearly. Neither peer review nor supervisory staff attorney review is adequate, and your decision on filling the supervisory staff attorney vacancies will be a critical one.

Committee Opinion, at p. 2 (italics in original).

Not surprisingly, the Committee concluded that Posner’s revelation of this non-public information “violates the intent, letter, and spirit of the Code of Conduct for United States Judges.” Id. at p. 7. Reading between the lines, it appears that the Committee was aghast about Posner’s behavior. In a footnote, the Committee wrote:

The Committee has effectively had no prior occasion to opine on conduct implicating Canon 4D(5).[viii] Candidly, the lack of opinions is likely reflective of the truth that Canon 4D(5)’s proscription is abundantly clear and, thus, no other judge has ever sought guidance from the Committee as to whether such disclosure of nonpublic information is ethically acceptable.

Id. at p. 4 n.1.

As I read the opinion, I nodded my head in agreement until I came across one sentence. That one sentence causes me great concern. It reads:

You might also consider adopting a local rule, requiring judges to obtain the chief judge’s final approval before submitting any extrajudicial writings for publication, analogous to the rule requiring the chief judge’s approval for a judge to teach for compensation. See Guide to Judiciary Policy, Vol. 2C, Ch. 10 § 1020.35(c)[ix]; Compendium § 1.2(e).[x]

Id. at p. 6 (footnote omitted; italics by Kopf)

This advice stunned me. Unless limited, this advice is both unprecedented and dangerous.

First, the authority cited for requiring judges to submit their extrajudicial writing for review by a chief judge is inapposite. The citations refer to the statutory “outside earned income limitations” and the requirement that judges receive permission from their Chief Judges to teach for money. 5 App. § 501, § 502(a)(5), § 503(3). The statutes are plainly intended to insure that judges may not earn money teaching unless they are current in their workload. These statutes do not give, and so far as I am aware, have never been interpreted to give a chief judge the power to pass upon the substance of what a judge teaches.

Still further, the idea that a judge’s extrajudicial writing is subject to prepublication censorship by his or her chief judge would obviously seem to run afoul of both the First Amendment and Article III of the Constitution. Furthermore, the Committee’s advice, unless limited, would seem to stifle an essential part of the Code itself. Canon 4(A)(1)[xi] and the Commentary to Canon 4[xii] of the Code encourage judges to write about legal subjects. Not one word mentions oversight of the substance of what a judge writes. Even more fundamentally, I am aware of no statutory authority that would authorize chief judges to become censors-in-chief.

It may be that the sentence I am concerned about—adopting a local rule requiring judges to obtain the chief judge’s final approval before submitting any extrajudicial writings for publication—was a loosely written but understandable overreaction to the extreme facts of the Posner case. However, without some explicit limitation by the Committee, some chief judge somewhere may take the words of the Posner/Wood opinion as gospel. That would be a very bad thing since there is no authority for such a rule, and such a rule would conflict with the words and spirit of an explicit provision of the judges’ Code. Should such an unlimited rule be adopted, I, for one, will not abide by it.

Richard G. Kopf
Senior United States District Judge (Nebraska)

[i] I was honored to serve on the Committee from 2006-2012. The normal period of service on a Judicial Conference Committee is three years. Given the intricacies of the Codes and the time it takes to become intimately familiar with the Codes and the precedents (which are mostly non-public), the term is normally extended to six years.

[ii] The Committee also issues opinions regarding the Employee Code.

[iii] The Committee also has a staff lawyer detailed from the General Counsel’s office. That extremely able lawyer has served the Committee for a long time. However, Committee counsel does not draft the opinions. The opinions are solely prepared by the judicial members of the Committee and their chambers’ staff.

[iv] In essence, a certificate will allow a judge to sell property and reinvest the proceeds in certain permitted property within a specified period of time without recognizing the gain at the time of the sale if the sale is done for the purpose of avoiding financial recusal issues. See 26 U.S.C. § 1043.

[v] Soon after the book was published, I bought it and read it. In a September 17, 2017, e-mail to SHG, which I hope he does not mind me repeating, I wrote:

Scott,

I just completed reading the major part of Posner’s Reforming the Federal Judiciary: My Former Court Needs to Overhaul Its Staff Attorney Program and Begin Televising Its Oral Arguments (Sept. 7, 2017).

I wanted to read that portion of the book that dealt with pro se litigation to understand why he resigned and what his proposals for reforming the pro se staff attorneys’ office in the Seventh Circuit were. After that effort, I would have been better off [gouging] my eyes out.

At bottom, the book is a self-congratulatory exposition of Posner’s favorable view of his own writing skills. What is worse, Posner resigned in a fit of pique. His colleagues would not let him edit all the work of the Circuit’s pro se staff attorneys before that material got to the rest of the judges.

As you know, I believe judicial transparency is important, but Posner’s transparency in this instance reveals the egocentricity of a child. He didn’t get his way with his colleagues and he is damn sure to punish them on the way out.

Color me disgusted. Color me also embarrassed for my former hero worship of this megalomaniac.

Finally, do me a favor, please. In my dotage, and if (or perhaps when) it becomes time, tell me to STFU.

All the best.

[vi] On the date of the opinion, Posner was then a judge. His service terminated on September 2, 2017, due to retirement. See here.

[vii] Like all opinions, this one authorized Chief Judge Wood to make the opinion public if she liked: “The Committee treats all inquiries and responses as confidential and will disclose information about them only in the narrow circumstances described in the Committee’s confidentiality policy. See Guide to Judiciary Policy, Vol. 2B, Ch.1 § 130. As the recipient of this letter, you may use it as you please.”

[viii] “A judge should not disclose or use nonpublic information acquired in a judicial capacity for any purpose unrelated to the judge’s official duties.”

[ix] See here.

[x] The Compendium is not publicly available. That document is basically a condensed and indexed version of all of the private opinions that other judges may consult to do their own research. It does not identify the name of the recipient of the summarized opinion. On certain subjects, the Judicial Conference of the United States has authorized the Committee to publish formal advisory opinions on ethical issues that are frequently raised or have broad application. See Published Advisory Opinions.

[xi] “A judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice.”

[xii] “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.”

12 comments on “Kopf: The Unexploded Landmine Buried Deep In The Codes of Conduct Committee’s Otherwise Excellent Opinion On Posner

  1. B. McLeod

    I suspect the chief judge would grow weary of the early-morning wakeup calls to approve proposed online posts.

    1. Earl

      The role of chief judge is administrative only. She has no more power than you or I to tell the other judges how to handle their business. Since she cannot control the district court judges, how in the world is she expected to control her peers? Finally, the Committee’s opinion is non-binding, thus worthless.

      Having seen it first-hand, I happen to agree with Mr. Posner that the Seventh Circuit does whatever it can (without being obvious) to get rid of pro se appellants — even if they are dying.

  2. PseudonymousKid

    Dear Judge Kopf,

    You aren’t the only one embarrassed by former praise of Posner. It’s a shame. It’s just more confirmation that nothing is deserving of any sort of worship.

    You say judicial transparency is important. If Posners are still infecting the bench with cavalier attitudes to the rule of law, I want to know who they are. Let them tell us. Throw open the floodgates. Every judge should have a blog. After all, secrets, secrets are no fun; secrets, secrets hurt someone.

    Maybe I secretly want to watch the world burn.

    Best,
    PK

  3. FormerClerkCoCJudge

    Excellent piece Judge! I would add to your point that law clerks only need permission when they write on the law and even then a judge need not review the content. It would seem a judge would have more freedom than a law clerk. But it would seem a judge would have better judgment than to disclose confidential communications.

  4. losingtrader

    Judge, do you think there’s any correlation between your analysis, and the fact that Posner Industries sells nuts?

  5. SPM

    Two thoughts:

    1) At the time, Judge Posner’s decision to retire immediately – and not simply assume “senior status” – took almost everyone by surprise. If my assumption that retirement removes him from the reach of the Judicial Conference is correct, then perhaps the timing and the mechanics of his decision begins to make some sense.

    2) If the Committee literally meant what they wrote, then that would be highly problematic. But perhaps what they really meant was that the Chief Judge must approve the use of any court documents that are not in the public domain. That interpretation would seem to make a little more sense and be a little more justifiable. But lawyers, of all people, should know that you are held accountable to what you actually write and not what you intended to say. Even more fundamentally, a judge shouldn’t be using that non-public information in any case, anyway.

    Also, Judge Kopf, it was good to finally find you again. In addition to the content, it it is good to hear little reminders of growing up in the Omaha area – Papillion, specifically.

    1. Richard Kopf

      SPM,

      As to your questions,

      1. Once you are retired as Posner did (not on senior status), it would be my view that the Judicial Conference’s Committee that handles discipline would be without power to act.

      2. As to your second point, I agree as well. The Committee may have been thinking about the revelation of non-public information when it wrote the sentence I was concerned about but, if so, it makes little sense to request permission for something that is categorically prohibited.

      And, finally, I remind you that once a Nebraskan always a Nebraskan. All the best.

      RGK

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