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JUDGE JACKSON'S DISQUALIFICATION IN THE MICROSOFT CASE: AN OBJECT LESSON IN THE PERILS OF EXTRA-JUDICIAL SPEECH
Professor William G. Ross
Cumberland School of Law, Samford University
JURIST Contributing Editor

As a Phoenix news reporter covering a trial twenty-five years ago, I was miffed when the judge, Sandra Day O辰onnor, refused to discuss the case with me. Two months later, when I entered law school, I began to understand the wisdom of her reticence.

Public comments by judges about pending cases compromise the integrity of the judicial process and violate the canons of judicial ethics. Nevertheless, judges have become increasingly uninhibited about communicating with the media during the years since Judge O辰onnor closed her door to me. This trend is disturbing. More judges should follow O辰onnor痴 example.

Perhaps more will, now that the U.S. Court of Appeals has castigated U.S. District Judge Thomas Penfield Jackson for his public comments about the Microsoft case and disqualified him from further participation in the case.

In its decision, the Court of Appeals expressed disapproval of Judge Jackson for giving media interviews and public speeches in which he made remarkably astringent remarks about Microsoft. Among his more colorful comments, the judge mused that Bill Gates had Napoleonic hubris and he likened the break-up of Microsoft to swatting a recalcitrant mule with a two-by-four. Probably more disturbing were his remarks to reporters before his order splitting Microsoft that 殿 break-up is inevitable and his post-trial comments disparaging the credibility of trial witnesses.

The court concluded that the judge痴 remarks violated Canon 3A(6) of the Code of Judicial Conduct, which requires a judge to 殿void public comment on the merits of pending and impending cases, and its corollary, Canon 3A(4), which prohibits ex parte communications about a case. The court also determined that the judge violated Canon 2, which requires a judge to 殿void impropriety and the appearance of impropriety in all activities. Declaring that these 砺iolations were deliberate, repeated, egregious, and flagrant, the court ordered the judge痴 disqualification pursuant to a federal statute that requires disqualification of a judge when a reasonable observer would question his impartiality.

As the court pointed out, the 溺icrosoft case was 叢ending during every one of the District Judge痴 meetings with reporters; the case is 叢ending now; and even after our decision issues, it will remain pending for some time. The court explained that the judge 澱reached his ethical duty under Canon3A(6) each time he spoke to a reporter about the merits of the case. According to the court, the 途ampant disregard for the judiciary痴 ethical obligations that the public witnessed in this case undoubtedly jeopardizes 叢ublic confidence in the integrity of the District Court proceedings. The court also pointed out that the judge痴 interviews provided journalists with valuable 妬nside information about the case that they theoretically could have used to trade in Microsoft stock.

Judges and journalists who complain that ethical canons unduly restrict judicial speech are fond of correctly pointing out that judges are citizens, too, and that judges -- like other citizens-- enjoy the protection of the First Amendment. Like other citizens, however, a judge does not enjoy unlimited rights to free speech. While restrictions on judicial speech are subject to scrutiny under the First Amendment, courts long have recognized that judges may be disciplined for speech that would not warrant sanctions against an ordinary citizen inasmuch as there is a compelling interest in protecting public confidence in the impartiality of the judiciary. Public comments by judges about the facts, applicable law, or merits of a case or any comment about the parties or their attorneys easily could raise significant doubts about the judge痴 objectivity and his or her willingness to reserve judgment until the close of the proceeding.

Paradoxically, the unfortunate increase in extrajudicial comments by judges reflects a positive development increased and improved media attention to legal issues in response to growing public sophistication about legal issues. First-year law students that I致e taught during recent years are better informed about basic legal concepts and terminology than was I when I entered law school or were the students I first taught thirteen years ago.

Although the growing public fascination with legal issues may reflect in part society痴 growing litigiousness, it also demonstrates a widespread desire to become better informed about issues that have a pervasive impact on everyday life. The massive media attention given to legal issues such as the Microsoft litigation I was astounded when Newsweek had a cover story on an antitrust case! represents a refreshing exception to the growing trivialization and dumbing-down of the news. Attempts to break up Microsoft are far more worthy of media attention than is the break-up of a pop star痴 marriage.

Unfortunately, this healthy public appetite for information about the law has stimulated in some judges an unhealthy hunger for publicity. This craving for media attention debases the dignity of the judiciary and erodes that public confidence in the objectivity of the judiciary which is a predicate for the rule of law. As the Court of Appeals observed in the Microsoft case, judges 努ho covet publicity, or convey the appearance that they do, lead any objective observer to wonder whether their judgments are being influenced by the prospect of favorable coverage in the media.

We should not blame the news media for judicial indiscretions. It is the proper role of reporters to try to obtain as much information as possible about public issues. A reporter who obtains confidences from a judge is doing her job, and doing it well. But a judge should be a judge rather than a pundit or a media celebrity. There are legions of commentators in the realms of law, academia, and journalism who are ably qualified to interpret judicial opinions for the general public. Only a judge, however, can uphold the integrity of the judiciary. Discretion and circumspection are significant components of judicial temperament.

This does not mean that a judge must remain wholly mute in public. Canon 3A(6) explicitly provides that the rule against comment on a pending or impending case 電oes not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court. Accordingly, as one organization of state trial judges has pointed out, 殿 judge may and should explain legal terms, and concepts, procedures, and the issues involved in the case so as to permit the news representatives to cover the case more intelligently.

Judges also have a duty to comment on issues of judicial administration about which they have unique knowledge. Similarly, a judge should speak out about political issues that directly affect his or her court if he can make a distinct contribution to public discourse. For example, it was appropriate for Chief Justice Charles Evans Hughes in 1937 to publicly refute President Roosevelt痴 claim, made in support of Roosevelt痴 Court-packing plan, that the Justices were over-burdened. Moreover, judges can make useful contributions to the development of the law by writing and speaking about various points of law, provided that the judge makes clear that he would keep an open mind about any question that came before him on the bench.

Comments about the merits of the case or the personalities of the litigants obviously extend far beyond these bounds.

In its opinion in the Microsoft case, the Court of Appeals concluded that the judge had no excuse that he was trying to educate the public about the case or correct public misperceptions about it. The judge could have accomplished these purposes in his written opinion. 徹r, as the court points out, 塗e could have held his tongue until all appeals were concluded.

Although blatant comments about pending cases remain relatively rare, judges also appear to be commenting more frequently about cases that they already have decided. While the canons do not prohibit judges from making public comments concerning their own judicial decisions, judges should tenaciously refrain from making such comments about any decision that is the subject of a written opinion. As an official pronouncement, a judicial opinion is a self-contained entity which must speak for itself. Any public comment by a judge detracts from its integrity. A judge痴 explanation may distort the legal process by encouraging lawyers and even courts to interpret the decision in the context of the judge痴 remarks. In contrast to statutes, which may be interpreted with reference to legislative history, a judicial decision must be its own exponent.

A judge may provide a service to history by recording her personal views about cases for posterity, but a judge should not release such information until long after a case has closed and preferably until after she has retired from the bench. The publication of a judge痴 memoirs or ancient private correspondence will not bias any pending case and is not likely to create the appearance of partiality.

It is not always easy for judges to determine when to speak up in public and when to remain silent. The canons offer only very general guidance. In trying to assess whether a particular type of speech is appropriate, a judge always should ask himself whether the statement is likely to detract from the dignity of the judiciary or would create prejudice or the appearance of prejudice. If so, the judge should err on the side of caution and remain silent.

While sanctions or disqualification may be imposed for grossly inappropriate comments, most questions about the propriety of extrajudicial comments must be resolved through the sound discretion and common sense of judges themselves.


William G. Ross teaches Constitutional Law and Constitutional History at Cumberland School of Law, Samford University, Birmingham, Alabama. He is a 1979 graduate of Harvard Law School. Professor Ross explored the issues discussed in this column in more detail in his article, "Extra-Judicial Speech: Charting the Bounds of Propriety," 2 Georgetown Journal of Legal Ethics, 589-632 (1989). He welcomes comments on this essay at JURIST@law.pitt.edu.

July 2, 2001

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CONTRIBUTING EDITOR

JURIST Contributing Editor William G. Ross is a professor at the Cumberland School of Law of Samford University, where he teaches constitutional law, legal history, and ethics. Professor Ross practiced law in New York City for nine years before joining the Cumberland faculty in 1988. He is the author of two books about American constitutional history and a book about the ethics of time-based billing by attorneys. His numerous law review articles concern ethics, legal history, and the federal appointments process. Professor Ross graduated from Stanford in 1976 and the Harvard Law School in 1979. He welcomes comments on his columns at JURIST@law.pitt.edu.