Some reflections on my disheartening exchange with Judge Jones at last Thursday's Federalist Society convention—and its ominous implications for the future of legal debate
Too many judges (including Judge Ho and Judge Jones) intentionally abuse the powers they were delegated (solely to support and defend our Constitution) to attack people in knowing violation of our Constitution.
“[T]he law” (including the First, Fifth and Fourteenth Amendments) “gives judges as persons, or courts as institutions” absolutely “no greater immunity from criticism” (or the Constitution) “than other persons or institutions.” Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829, 839 (1978) (cleaned up). Attorney “speech cannot be punished” merely “to protect the court as a mystical entity” or “judges as individuals or as anointed priests set apart from the community and spared the criticism to which” all “other public servants are exposed.” Id. at 842.
Mere “injury to [any judge’s] official reputation is an insufficient reason” for “repressing speech that would otherwise be free,” and “protect[ing]” the “institutional reputation of the courts, is entitled to no greater weight in the constitutional scales.” Id. at 841-842. Judges also cannot merely contend (as they did here) that “allegations of [judicial] misconduct” are merely “unfounded.” Id. at 840.
Even in 1774, the First Continental Congress (comprising many attorneys) emphasized that “freedom of the press” was among Americans’ “great rights” because it served the “advancement of truth” and “diffusion of liberal sentiments on the administration of Government,” including so that “oppressive officers” (including judges) can be “shamed or intimidated, into more honourable and just modes of conducting [public] affairs.” Roth v. United States, 354 U.S. 476, 484 (1957).
“Disheartening” indeed. Although, an understatement and I am sorry you experienced such an unprofessional situation.
I’m a new subscriber and feel fortunate to be here. I depend on your intellect and experience to inform me and am grateful for your work and energy! Thank you!
In 2016 I labeled what was happening, “The Republican-Federalist-Putin Coup Against America”, and faced much criticism using it while writing.
My research and observations led to its formation. Probably the #1 question was why the inclusion of, “Federalist”?
My label is a summary of course, each subject extensive but I think it fits many scenarios we continue to face.
Think ahead to how you will react when James Ho is appointed to the Supreme Court by Trump in the next 2 years, to replace a "retiring" Thomas or Alito. Or maybe Aileen Cannon or even Matthew K.
Your treatment was despicable, but don't expect an apology from anyone related to the Fed Soc.
I am very reportedly distantly related to John Tyler-and even though Tyler was one of the worst presidents in America's History (but the new administration will make him look like a "piker" to be sure) so I vote that we make "him" a Whig.
With respect to section IV on participation in FedSoc (and similar) debates—
I really hope the takeaway is *more* individuals with solid, principled disagreements with FedSoc should participate. There is a real risk these panels will be populated by Alan Colmes types, as Epps said in his remarks. The FedSoc does not need a B team of law professor Washington Generals to dunk on.
I watched the whole exchange on Friday and...wow, Judge Jones did not come across well. I understand Vladeck's personal....irritation, to put it mildly. However, his presence AND participation on this panel helped draw a huge red circle around how weak the arguments made by Judge Jones really are. No fair-minded person can walk away from that video and think Judge Jones acquitted herself honorably OR that she made her point effectively. That was only possible because Vladeck was both there AND made HIS point without taking the bait.
So I'm thankful Vladeck participated and did so in an effective manner. Thank you.
Hopefully to play the same role he did in this panel and showing EJ why their approach is bad! In a thoughtful, calm, logical manner. Not to support EJ's abuse of the legal system or to support EJ's objectively bad positions on the actual environment.
This might be a good time for a FedSoc panel discussion on how our Constitution, federal law and SCOTUS precedent strongly secure our right to express criticism of judicial conduct (and misconduct). It is alarming that yet another circuit court judge chose to launch a personal attack on one critic (with the apparent intent to intimidate other critics) instead of addressing the merits of the criticism of judicial conduct (or misconduct).
The timing of Judge Jones's public personal attack on a critic is, perhaps, even more alarming. Mere weeks ago--on October 30, 2024--at least two Fifth Circuit judges on a panel ordered that I be disbarred (No. 24-90007) for doing nothing worse that including statements in federal court filings exposing the criminal misconduct of federal judges. Nobody ever denied that the judges that I identified committed the federal crimes that I identified. Nobody ever even contended that anything I wrote was false or even misleading as to any fact or legal authority. Moreover, in the decision purporting to justify my disbarment, at least two Fifth Circuit judges knowingly misrepresented the record and knowingly violated our Constitution and federal law and flouted controlling SCOTUS precedent.
On November 12, I submitted an electronic copy of a petition for en banc review. I showed how many decades of SCOTUS precedent secures to attorneys the same right as every other U.S. citizen enjoys. Under our Constitution, “the people are sovereign,” and we “speak” and “use information” regarding public issues for “enlightened self-government,” including “to hold officials” (public servants) “accountable to the people.” Citizens United v. FEC, 558 U.S. 310, 339 (2010). Accord id. at 339-341, 344-350. Our “political speech must prevail against laws that would suppress it” by “design or inadvertence.” Id. at 340. “Government” must “prove that” action taken against critics “furthers a compelling interest and is narrowly tailored to achieve that interest.” Id. Judges are “constitutionally disqualified from dictating” (in the manner they too often do) “the subjects about which” attorneys “may speak” or which “speakers” may “address a public issue.” Id. at 347. Citizens United protected state-created corporations; so it necessarily protects state-licensed attorneys.
An event which occurred just after the conference might shed light on what she means. On Friday, the President -elect named his new FCC Chairman. He is a sitting Commissioner who certainly has the skill and experience to carry out the duties and he does not need to be confirmed becuase he was re-appointed and unanimously confirmed last year. The trouble is that his views of the role of the agency are problematic. He was an architect of the section of Project 2025 that dealt with the communications industries and he has openly declared that he is going to use his role to "end censorship" a pronouncement which looks identical to the legislation adopted in several red states and now before the Supreme Court that purports to end alleged censorship of true conservatives by the alleged mainstream media. The New Chairman and of course the Trump Administration will take office "In January". This suggests that what Judge Jones means is that the criticism of decisions that the Right Extremists endorse will "end " when the new Administration takes office."
I'm going to give the Society credit. Even though it was a setup, they did hold a debate on judge-shopping. They did invite the nation's most respected critic of the practice; a member, moreover, of a political party their members often disavow. I hope this signals a new effort towards becoming the fair debate society their student members need and expect of them.
Except it was neither pitched to me nor advertised as a debate on judge-shopping. It was supposed to be a panel about judicial independence in response to Kannon Shanmugam's speech at Duke. That makes it harder, in my view, to give anyone credit for what it turned into.
It was a set up whether or not it was intended as such ; someone knew what Judge Jones was going to do with the session. It is all the more reason for Professor Vladeck to boycott these kinds of Conventions; if he thinks things might change, the "for now" creates the opportunity to change his position.
In my opinion, Edith Jones is a tired old crank whose expertise in the area of Constitutional Law and the proper role of the federal judiciary in our government is about as deep as a layer of graphene. If I were you, I’d wear her silly opprobrium as a gem in your crown. If Charles Alan Wright were still alive today, I’m confident that his position on these issues would be closer to yours than to hers.
I agree with WRD, I hope you will participate on panels of all types in the future. Your empirically based arguments are strong, and your voice needs to be heard, especially by "skeptical" audiences. (No doubt you realize your book The Shadow Docket has already rattled a few cages.)
Judge Jones, in contrast, did no favors to herself or her "arguments" -- merely serving, I think, to underline your points. You stayed cool under fire. Bravo!
With respect I dissent. Indeed, Professor Vladeck's solution--to remain engaged with student programs and to avoid Conferences of the sort attended by Judge Jones for now is generous in that is conveys a conclusion that the views of some members of the Federalist Society deserve consideration. It is also courageous in the sense that the "concern" about provoking violence against judges seems to apply only to what Judge Jones regards as left wing criticism; the fact that there are a number of Judges in other circuits who are under full time security protection for having reached decisions that do not accord with the views of the Society members and have been criticized in the Conferences and public sessions of the Society seems to have escaped Judge Jones notice.
Wow-just wow as one commentator below stated. That there was a "file" prepared in advance (!) on your public expressions and writings (I literally gasped) by one of the panelists (see at 1:17 appx) truly shocked me-especially prepared by a panelist who had expressed a deep reverance for the First Amendment (when citing the Alabama case) only moments prior to this verbal attack. There is so much to say on all this-but now I am loathe to expound more-lest I be risk being "confronted" with my public statements in some kind of public forum in the future (!). We all have a professional duty of responsibility to conduct ourselves in public with discernment and ethical standards when critiquing our legal profession in general, but this whole scenario gives the appearance that you were indeed "hand-picked" and that this was a set-up from the git-go as we say out here in the west.
Judge Jones provided a textbook example of how judges violate our Constitution by attacking critics instead of addressing the merits of criticism of judicial conduct. This is not even a novel violation of our Constitution and the duties of all public servants. More than 60 years ago, SCOTUS famously and repeatedly emphasized the unconstitutionality of public servants attacking the public they purportedly serve for mere criticism of public servants' public service.
Our “speech on public issues occupies” the “highest rung of the hierarchy of First Amendment values” and is “entitled to special protection.” Connick v. Myers, 461 U.S. 138, 145 (1983); Snyder v. Phelps, 562 U.S. 443, 452 (2011). See also Connick at 145 quoting Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964):
The controlling principle under our Constitution is that our “speech concerning public affairs” is … [a sovereign power, i.e.,] the essence of self-government. The First and Fourteenth Amendments” [ensure] “that debate on public issues [may] be uninhibited, robust, and wide-open, and [may even] include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
The “public interest in a free flow of information to the people concerning public officials, their servants” is “paramount,” so “anything which” even “might touch on an official’s fitness for office is relevant,” including judges’ “dishonesty, malfeasance, or improper motivation.” Garrison at 77.
Our Constitution secures our “privilege for criticism of official conduct.” New York Times Co. v. Sullivan, 376 U.S. 254, 282 (1964). Courts must “support” the “privilege for the citizen-critic of government” (id.) because such “privilege is required by the First and Fourteenth Amendments” (id. at 283). Judges cannot “give public servants an unjustified preference over the public they serve” by denying “critics of official conduct” the “immunity” that the sovereign people “granted” to “officials.” Id. at 282-283.
“(I)t is a prized American privilege to speak one’s mind” on “all public institutions,” including in “vigorous advocacy.” Id. at 269 quoting NAACP v. Button, 371 U.S. 415, 429 (1963) (“the First Amendment” necessarily “protects vigorous advocacy” in litigation) (collecting cases). No “regulatory measures” (court rule or ruling or other judicial statements or conduct), “no matter how sophisticated,” can “be employed in purpose or in effect to stifle, penalize, or curb” our “exercise of First Amendment rights.” Id. at 439. Accord Sullivan, 376 U.S. at 269 (dispensing with all “mere labels” abused as “formulae for the repression of expression”).
Steve, I have long enjoyed your NSL Podcast and commentary, despite disagreeing on a number of issues (and despite practicing in an unrelated field). I felt compelled to become a paid subscriber to your newsletter after seeing your truly impressive reaction to the panel discussion--both in the moment and since. Bravo.
"...the inability of people who should know better to distinguish between principled criticisms of judicial behavior and personal attacks on judges is a serious problem for our discourse..." It's been my lifetime experience that when people turn to personal comments, as opposed to substantive comments, they've demonstrated that they have no substantive comments to make. They're responding in a completely defensive mode because they know, at some level or another, that your comments are correct. Pulling out the folder, and reading the tweets was merely performance and a display of arrogance. Ethical behavior is a top-down phenomenon in any organization. With Trump at the top of the government, this behavior is hardly surprising and will become more wide-spread and common. This is also the behavior of some of the conservative justices on the Supreme Court - hubris, arrogance and denial. Everyone needs to examine their beliefs to determine if they're the result of self-centeredness or logic. If you're driven by logic, you can change your view. I agree with your position of differentiating between participating in student panels because most students are still formulating their opinions and you can provide some thoughtful insights. I have to admit, after reading your essays for a while, I find that you seem to go out of your way to stay as impartial as possible; as diplomatic as possible. Considering that, Judge Jones' comments are very revealing, and petty. I also fully agree with your footnote about the role of a moderator and you were set-up.
I realized you’d be in the minority on that panel, but thought it is healthy to have different viewpoints represented. Surprised you were set up, but glad to know you held your own.
Keep on advocating for the proper way to view judicial independence. The country is better off as a result.
Judges are people. Good and bad people are appointed to be judges. So what. The take away from this is three fold. First, going to the Federalist Society expecting ‘fair and balanced’ is like turning on Fox News and expecting the same. Second, life time appointments should stop and limits of some kind imposed. Third, even an unfairly ambushed Vladeck exhibits both a professionalism and delivers his responses with good humor and manners—naturally quick witted and generationally smart he proves more than a match for his main critic.
The issue is not at all whether judges are "[g]ood or bad people." The issue is that our Constitution was designed to protect us (the people) from judicial misconduct by specifically providing that federal judges may "hold their offices" only "during good behaviour." U.S. Const. Art. III. Consider also the text of judges' two oaths of office (5 U.S.C. 3331 and 28 U.S.C. 453). Judges never were (and never should be) expected to have the power to knowingly violate our Constitution.
This is very disturbing. I know it's the effing Federalist Society, but O Wow! The cloak of autocracy gets heavy very quickly. Very quickly.
Too many judges (including Judge Ho and Judge Jones) intentionally abuse the powers they were delegated (solely to support and defend our Constitution) to attack people in knowing violation of our Constitution.
“[T]he law” (including the First, Fifth and Fourteenth Amendments) “gives judges as persons, or courts as institutions” absolutely “no greater immunity from criticism” (or the Constitution) “than other persons or institutions.” Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829, 839 (1978) (cleaned up). Attorney “speech cannot be punished” merely “to protect the court as a mystical entity” or “judges as individuals or as anointed priests set apart from the community and spared the criticism to which” all “other public servants are exposed.” Id. at 842.
Mere “injury to [any judge’s] official reputation is an insufficient reason” for “repressing speech that would otherwise be free,” and “protect[ing]” the “institutional reputation of the courts, is entitled to no greater weight in the constitutional scales.” Id. at 841-842. Judges also cannot merely contend (as they did here) that “allegations of [judicial] misconduct” are merely “unfounded.” Id. at 840.
Even in 1774, the First Continental Congress (comprising many attorneys) emphasized that “freedom of the press” was among Americans’ “great rights” because it served the “advancement of truth” and “diffusion of liberal sentiments on the administration of Government,” including so that “oppressive officers” (including judges) can be “shamed or intimidated, into more honourable and just modes of conducting [public] affairs.” Roth v. United States, 354 U.S. 476, 484 (1957).
“Disheartening” indeed. Although, an understatement and I am sorry you experienced such an unprofessional situation.
I’m a new subscriber and feel fortunate to be here. I depend on your intellect and experience to inform me and am grateful for your work and energy! Thank you!
In 2016 I labeled what was happening, “The Republican-Federalist-Putin Coup Against America”, and faced much criticism using it while writing.
My research and observations led to its formation. Probably the #1 question was why the inclusion of, “Federalist”?
My label is a summary of course, each subject extensive but I think it fits many scenarios we continue to face.
Again, I’m here with much appreciation.
Steve,
Think ahead to how you will react when James Ho is appointed to the Supreme Court by Trump in the next 2 years, to replace a "retiring" Thomas or Alito. Or maybe Aileen Cannon or even Matthew K.
Your treatment was despicable, but don't expect an apology from anyone related to the Fed Soc.
President Whitmore? Maybe an alien invasion is what we need.
I was trying to come up with a fictional president with ambiguous partisan affiliation. :-)
Yeah, they never did say what his party was…
I am very reportedly distantly related to John Tyler-and even though Tyler was one of the worst presidents in America's History (but the new administration will make him look like a "piker" to be sure) so I vote that we make "him" a Whig.
With respect to section IV on participation in FedSoc (and similar) debates—
I really hope the takeaway is *more* individuals with solid, principled disagreements with FedSoc should participate. There is a real risk these panels will be populated by Alan Colmes types, as Epps said in his remarks. The FedSoc does not need a B team of law professor Washington Generals to dunk on.
I watched the whole exchange on Friday and...wow, Judge Jones did not come across well. I understand Vladeck's personal....irritation, to put it mildly. However, his presence AND participation on this panel helped draw a huge red circle around how weak the arguments made by Judge Jones really are. No fair-minded person can walk away from that video and think Judge Jones acquitted herself honorably OR that she made her point effectively. That was only possible because Vladeck was both there AND made HIS point without taking the bait.
So I'm thankful Vladeck participated and did so in an effective manner. Thank you.
I agree. I have to wonder if this was a set-up…very unprofessional atmosphere.
Yes, Judges Ho and Jones are both on the 5th Circuit. It looks like a pre-planned ambush; very juvenile and unprofessional.
Well said.
Uh follow up to my own comment here:
Vladeck is now on the board of Earthjustice?
Hopefully to play the same role he did in this panel and showing EJ why their approach is bad! In a thoughtful, calm, logical manner. Not to support EJ's abuse of the legal system or to support EJ's objectively bad positions on the actual environment.
Ugh. No more "the Groups."
This might be a good time for a FedSoc panel discussion on how our Constitution, federal law and SCOTUS precedent strongly secure our right to express criticism of judicial conduct (and misconduct). It is alarming that yet another circuit court judge chose to launch a personal attack on one critic (with the apparent intent to intimidate other critics) instead of addressing the merits of the criticism of judicial conduct (or misconduct).
The timing of Judge Jones's public personal attack on a critic is, perhaps, even more alarming. Mere weeks ago--on October 30, 2024--at least two Fifth Circuit judges on a panel ordered that I be disbarred (No. 24-90007) for doing nothing worse that including statements in federal court filings exposing the criminal misconduct of federal judges. Nobody ever denied that the judges that I identified committed the federal crimes that I identified. Nobody ever even contended that anything I wrote was false or even misleading as to any fact or legal authority. Moreover, in the decision purporting to justify my disbarment, at least two Fifth Circuit judges knowingly misrepresented the record and knowingly violated our Constitution and federal law and flouted controlling SCOTUS precedent.
On November 12, I submitted an electronic copy of a petition for en banc review. I showed how many decades of SCOTUS precedent secures to attorneys the same right as every other U.S. citizen enjoys. Under our Constitution, “the people are sovereign,” and we “speak” and “use information” regarding public issues for “enlightened self-government,” including “to hold officials” (public servants) “accountable to the people.” Citizens United v. FEC, 558 U.S. 310, 339 (2010). Accord id. at 339-341, 344-350. Our “political speech must prevail against laws that would suppress it” by “design or inadvertence.” Id. at 340. “Government” must “prove that” action taken against critics “furthers a compelling interest and is narrowly tailored to achieve that interest.” Id. Judges are “constitutionally disqualified from dictating” (in the manner they too often do) “the subjects about which” attorneys “may speak” or which “speakers” may “address a public issue.” Id. at 347. Citizens United protected state-created corporations; so it necessarily protects state-licensed attorneys.
I would like some clarification on the moment Jones said, “ It all ends in January”.
I will have to watch the tape again but if someone here remembers, thanks.
100% alarm bells went off-what did that mean exactly.
An event which occurred just after the conference might shed light on what she means. On Friday, the President -elect named his new FCC Chairman. He is a sitting Commissioner who certainly has the skill and experience to carry out the duties and he does not need to be confirmed becuase he was re-appointed and unanimously confirmed last year. The trouble is that his views of the role of the agency are problematic. He was an architect of the section of Project 2025 that dealt with the communications industries and he has openly declared that he is going to use his role to "end censorship" a pronouncement which looks identical to the legislation adopted in several red states and now before the Supreme Court that purports to end alleged censorship of true conservatives by the alleged mainstream media. The New Chairman and of course the Trump Administration will take office "In January". This suggests that what Judge Jones means is that the criticism of decisions that the Right Extremists endorse will "end " when the new Administration takes office."
Great, a confirmation of my thinking. Thanks.
Thanks, Steve.
I'm going to give the Society credit. Even though it was a setup, they did hold a debate on judge-shopping. They did invite the nation's most respected critic of the practice; a member, moreover, of a political party their members often disavow. I hope this signals a new effort towards becoming the fair debate society their student members need and expect of them.
Except it was neither pitched to me nor advertised as a debate on judge-shopping. It was supposed to be a panel about judicial independence in response to Kannon Shanmugam's speech at Duke. That makes it harder, in my view, to give anyone credit for what it turned into.
It was a set up whether or not it was intended as such ; someone knew what Judge Jones was going to do with the session. It is all the more reason for Professor Vladeck to boycott these kinds of Conventions; if he thinks things might change, the "for now" creates the opportunity to change his position.
In my opinion, Edith Jones is a tired old crank whose expertise in the area of Constitutional Law and the proper role of the federal judiciary in our government is about as deep as a layer of graphene. If I were you, I’d wear her silly opprobrium as a gem in your crown. If Charles Alan Wright were still alive today, I’m confident that his position on these issues would be closer to yours than to hers.
"as deep as a layer of graphene" Love it! (i.e., stealing it!) 😆
Don’t steal it, use it freely. At first, I wanted to use the Planck length, it being so much smaller. But I liked the sound of “graphene” better.
I agree with WRD, I hope you will participate on panels of all types in the future. Your empirically based arguments are strong, and your voice needs to be heard, especially by "skeptical" audiences. (No doubt you realize your book The Shadow Docket has already rattled a few cages.)
Judge Jones, in contrast, did no favors to herself or her "arguments" -- merely serving, I think, to underline your points. You stayed cool under fire. Bravo!
With respect I dissent. Indeed, Professor Vladeck's solution--to remain engaged with student programs and to avoid Conferences of the sort attended by Judge Jones for now is generous in that is conveys a conclusion that the views of some members of the Federalist Society deserve consideration. It is also courageous in the sense that the "concern" about provoking violence against judges seems to apply only to what Judge Jones regards as left wing criticism; the fact that there are a number of Judges in other circuits who are under full time security protection for having reached decisions that do not accord with the views of the Society members and have been criticized in the Conferences and public sessions of the Society seems to have escaped Judge Jones notice.
They "won" when you walked in the door. The ones who find Jones' behavior clearly embarrassing aren't the intended audience.
Wow-just wow as one commentator below stated. That there was a "file" prepared in advance (!) on your public expressions and writings (I literally gasped) by one of the panelists (see at 1:17 appx) truly shocked me-especially prepared by a panelist who had expressed a deep reverance for the First Amendment (when citing the Alabama case) only moments prior to this verbal attack. There is so much to say on all this-but now I am loathe to expound more-lest I be risk being "confronted" with my public statements in some kind of public forum in the future (!). We all have a professional duty of responsibility to conduct ourselves in public with discernment and ethical standards when critiquing our legal profession in general, but this whole scenario gives the appearance that you were indeed "hand-picked" and that this was a set-up from the git-go as we say out here in the west.
Judge Jones provided a textbook example of how judges violate our Constitution by attacking critics instead of addressing the merits of criticism of judicial conduct. This is not even a novel violation of our Constitution and the duties of all public servants. More than 60 years ago, SCOTUS famously and repeatedly emphasized the unconstitutionality of public servants attacking the public they purportedly serve for mere criticism of public servants' public service.
Our “speech on public issues occupies” the “highest rung of the hierarchy of First Amendment values” and is “entitled to special protection.” Connick v. Myers, 461 U.S. 138, 145 (1983); Snyder v. Phelps, 562 U.S. 443, 452 (2011). See also Connick at 145 quoting Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964):
The controlling principle under our Constitution is that our “speech concerning public affairs” is … [a sovereign power, i.e.,] the essence of self-government. The First and Fourteenth Amendments” [ensure] “that debate on public issues [may] be uninhibited, robust, and wide-open, and [may even] include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
The “public interest in a free flow of information to the people concerning public officials, their servants” is “paramount,” so “anything which” even “might touch on an official’s fitness for office is relevant,” including judges’ “dishonesty, malfeasance, or improper motivation.” Garrison at 77.
Our Constitution secures our “privilege for criticism of official conduct.” New York Times Co. v. Sullivan, 376 U.S. 254, 282 (1964). Courts must “support” the “privilege for the citizen-critic of government” (id.) because such “privilege is required by the First and Fourteenth Amendments” (id. at 283). Judges cannot “give public servants an unjustified preference over the public they serve” by denying “critics of official conduct” the “immunity” that the sovereign people “granted” to “officials.” Id. at 282-283.
“(I)t is a prized American privilege to speak one’s mind” on “all public institutions,” including in “vigorous advocacy.” Id. at 269 quoting NAACP v. Button, 371 U.S. 415, 429 (1963) (“the First Amendment” necessarily “protects vigorous advocacy” in litigation) (collecting cases). No “regulatory measures” (court rule or ruling or other judicial statements or conduct), “no matter how sophisticated,” can “be employed in purpose or in effect to stifle, penalize, or curb” our “exercise of First Amendment rights.” Id. at 439. Accord Sullivan, 376 U.S. at 269 (dispensing with all “mere labels” abused as “formulae for the repression of expression”).
Steve, I have long enjoyed your NSL Podcast and commentary, despite disagreeing on a number of issues (and despite practicing in an unrelated field). I felt compelled to become a paid subscriber to your newsletter after seeing your truly impressive reaction to the panel discussion--both in the moment and since. Bravo.
That's very kind of you. I really appreciate it--and you!
Not a meaningful comment, but we miss your presence in Texas. And we do understand your moving to Georgetown . . .
"...the inability of people who should know better to distinguish between principled criticisms of judicial behavior and personal attacks on judges is a serious problem for our discourse..." It's been my lifetime experience that when people turn to personal comments, as opposed to substantive comments, they've demonstrated that they have no substantive comments to make. They're responding in a completely defensive mode because they know, at some level or another, that your comments are correct. Pulling out the folder, and reading the tweets was merely performance and a display of arrogance. Ethical behavior is a top-down phenomenon in any organization. With Trump at the top of the government, this behavior is hardly surprising and will become more wide-spread and common. This is also the behavior of some of the conservative justices on the Supreme Court - hubris, arrogance and denial. Everyone needs to examine their beliefs to determine if they're the result of self-centeredness or logic. If you're driven by logic, you can change your view. I agree with your position of differentiating between participating in student panels because most students are still formulating their opinions and you can provide some thoughtful insights. I have to admit, after reading your essays for a while, I find that you seem to go out of your way to stay as impartial as possible; as diplomatic as possible. Considering that, Judge Jones' comments are very revealing, and petty. I also fully agree with your footnote about the role of a moderator and you were set-up.
I realized you’d be in the minority on that panel, but thought it is healthy to have different viewpoints represented. Surprised you were set up, but glad to know you held your own.
Keep on advocating for the proper way to view judicial independence. The country is better off as a result.
Eye opening. Unsurprising. Disappointing.
Judges are people. Good and bad people are appointed to be judges. So what. The take away from this is three fold. First, going to the Federalist Society expecting ‘fair and balanced’ is like turning on Fox News and expecting the same. Second, life time appointments should stop and limits of some kind imposed. Third, even an unfairly ambushed Vladeck exhibits both a professionalism and delivers his responses with good humor and manners—naturally quick witted and generationally smart he proves more than a match for his main critic.
The issue is not at all whether judges are "[g]ood or bad people." The issue is that our Constitution was designed to protect us (the people) from judicial misconduct by specifically providing that federal judges may "hold their offices" only "during good behaviour." U.S. Const. Art. III. Consider also the text of judges' two oaths of office (5 U.S.C. 3331 and 28 U.S.C. 453). Judges never were (and never should be) expected to have the power to knowingly violate our Constitution.