Judges must mind their tongues

Guido Calabresi has a flair for the dramatic.

Almost 21 years after the fact, I still recall visiting his Connecticut farm, where he often hosted first-year Yale law students. He clambered to the roof of his red barn and spread his arms wide in delight at the glorious afternoon with its radiant fall colors.

In torts class, he so often tortured our minds with the dilemma of the trucker who must instantaneously decide whether to hit the child in the road or swerve and plow over the old man at his fruit stand that we printed T-shirts depicting “Guido’s Fresh Fruit.”

Once a top Yale student himself, Rhodes scholar and full law professor by age 29, he became a leading voice on the tort system with “The Costs of Accidents” (1970), in which he argued that accidents should be paid for by those most able to foresee and avoid them.

But Calabresi, who spent nine years as Yale Law School dean and then joined the 2nd U.S. Circuit Court of Appeals in 1994, apparently didn’t do a cost-benefit analysis before igniting a fire at the June 2004 convention of the American Constitution Society, a self-described progressive legal organization.

“OK, I’m a judge and so I’m not allowed to talk politics and so I’m not going to talk about some of the issues which were mentioned or what some have said is the extraordinary record of incompetence of this administration at any number of levels …,” Calabresi said during the Q-and-A of a panel discussion on the 2000 presidential election, according to a disciplinary ruling from the 2nd Circuit’s Judicial Council.

“I’m going to talk about a deeper structural issue that is at stake in this election, and that has to do with the fact that in a way that occurred before but is rare in the United States, that 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 what the Supreme Court did in Bush versus Gore. It put somebody in power. Now, he might have won anyway, he might not have, but what happened was … an illegitimate act by an institution that had the legitimate right to put somebody in power.

“The reason I emphasize that is because that is exactly what happened when Mussolini was put in by the King of Italy. …

“That is what happened when (German President Paul von) Hindenburg put Hitler in. I’m not suggesting for a moment that Bush is Hitler. I want to be clear on that, but it is a situation which is extremely unusual.

“When somebody has come in in that way, they sometimes have tried not to exercise much power. In this case, like Mussolini, he has exercised extraordinary power. He has exercised power, claimed power for himself that has not occurred since Franklin Roosevelt, who after all was elected big and who did some of the same things with respect to assertions of power in time of crisis that this president is doing.

“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, as a statement that the democracy reasserts its power over somebody who has come in and then has used the office to … build himself up.”

Well, hardly anyone took this as comparing Bush to FDR or as an appeal to voters to defend the structure of democracy. There was minimal mention that Calabresi’s family had fled Benito Mussolini’s Italy when he was a child.

Five days after the event, Calabresi wrote to 2nd Circuit Chief Judge John M. Walker Jr., “I am truly sorry and apologize profusely for the episode.” Calabresi said his remarks “reasonably could be – and indeed have been – understood to do something which I did not intend, that is, take a partisan position.”

The 2nd Circuit received five formal complaints, accusing the judge of unethical politicking and even incompetence for criticizing the Supreme Court’s ruling that ended the 2000 election.

Some Republican members of Congress called for disciplinary action.

Last Friday, the 2nd Circuit’s Judicial Council said that Calabresi had violated judicial ethics rules by calling for Bush’s ouster. But the council dismissed other complaints and said it was enough that the judge had apologized and was admonished by Walker in June.

The federal-judges-run-amok exaggerators probably will jump on this as proof positive of their outlandish claims. It’s nothing of the sort, given that the comments were made off the bench and didn’t pertain to any pending case.

Still, the incident underscores that federal judges no longer get to agitate like professors. They don’t have the freedom of belligerent filmmakers. For better or worse, provocative thinking sounds injudicious, especially in an election year.