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Tragic Choices: Guido, what were you thinking?

The blogosphere has erupted today over the silly comments made last weekend by Judge Guido Calabresi of the U.S. Court of Appeals for the Second Circuit, as reported by Josh Gerstein in today's New York Sun. Speaking before the American Constitution Society, in essence a left-wing version of the libertarian/conservative Federalist Society, Judge Calabresi questioned Bush's assumption of power through the Supreme Court's decision in Bush v. Gore as "illegitimate," compared that assumption of power to those of Mussolini and Hitler, and suggested that the American people ought to expel Bush from office not for political reasons but for "the structural reassertion of democracy."

Judge Calabresi, affectionately called Guido by his students, was my torts professor; he is charmingly generous, and I consider him a personal friend. His book The Cost of Accidents was the seminal work applying law and economics to the law of torts (which in application, unfortunately, had some quite negative unintended consequences -- many of which we have documented and will continue to document on this site).

But these comments make one really wonder what Guido's been smoking.

Since Howard Bashman linked to the article early this morning, the internet pundits have not been kind:

Andrew Sullivan awarded Calabresi as a "Begala Award Nominee" -- the not-at-all kind designation the blogger tosses out to those who spew forth over-the-top left-wing hyperbole.

Glenn Reynolds, a law professor and also a former Calabresi student, remarked, "From a federal appeals judge, Guido's remarks (assuming they have been correctly reported) are not only tendentious and inflammatory, but will serve to further encourage those who call the federal courts politicized and overweeningly liberal. He's a smart and thoughtful guy, but he should have been smarter and more thoughtful here."

The Curmudgeonly Clerk, a federal law clerk, goes much further and takes Guido to task as potentially (in his words "unambiguously") violating the judicial ethics canons. He points out that the Code of Judicial Ethics "explicitly prohibits federal judges from 'mak[ing] speeches for a political organization or candidate or publicly endors[ing] or oppos[ing] a candidate for public office . . . .' Canon 7(A)(2) (bold font emphasis added)."

Law professor Eugene Volokh agrees that Guido's comments violated the Judicial Canon, provided that he was paraphrased correctly (as Volokh notes, "[s]ubtle differences in his precise words might well make for substantial differences in the legal analysis").

Volokh also examines at length the substance of Guido's comments (or rather, the lack thereof). Volokh notes that, by analogy, Guido's statement is something rather like: "Like convicted felon and former Attorney General John Mitchell, Judge Guido Calabresi was appointed by a President who was eventually involved in a scandal that nearly led to the President's removal from office by the Senate. I am not suggesting for a moment that this person is John Mitchell, or is a felon who helped obstruct justice. I want to be clear on that, but it is a situation which is extremely unusual." Volokh also explains in some depth why the decisions of Italy's King and Germany's President to install Mussolini and Hitler -- however misguided -- were not really "illegitimate."

I think that the most charitable reading of Guido's analogy is that the Supreme Court might indeed have had the power to decide as it did in Bush v. Gore -- since he called it "a legitimate institution that had the right to put somebody in power" -- but that, nevertheless it shouldn't have exercised that power (i.e., by declining to hear the case by denying the Bush team's petition for certiorari), and that in doing so its action was "illegitimate" substantively. Guido wasn't making a formalist argument but a functionalist one; and not a legal argument but a prudential and pragmatic one.

Ironically, just as Guido seems to be saying that the Court shouldn't have acted, even though it could have, the same might be true for him, as Volokh noted ("It's possible (though far from certain) that, given the Supreme Court's decision in Republican Party v. White (2002), that Judge Calabresi can claim his speech is protected by the First Amendment, notwithstanding Canon 7.").

There's nothing wrong with a federal judge commenting on Bush v. Gore -- it's not a case that could ever come before a lower court judge, and it's expressly limited to have, in effect, no precedential value. Seventh Circuit judge Richard Posner discussed the case at length in an online debate with Alan Dershowitz on slate.com shortly after the case was decided. And I see no reason why a federal judge should not be able to comment on the peculiar structure of the electoral college, or the appropriate judicial response in peculiar situations such as Bush/Gore or Hayes/Tilden.

There's also nothing wrong with a federal judge commenting on the theoretical legitimacy, or lack thereof, of anti-majoritarian constitutional structures like the electoral college (as long as he maintains his willingness to enforce even those structures he thinks philosophically unsound).

And there's nothing wrong with a federal judge drawing upon comparative history to remind us that our freedoms are sacred, and that even as we make compromises in times of imminent danger, we need be very watchful.

But Guido was clearly dancing around with the idea, pushed by the loony left, that equates Bush with Nazism -- and reinforcing that idea with a couple of tenuous analogies, (a) that Bush, like Mussolini or Hitler, was asserting extraordinary powers, and (b) that Bush wasn't elected by a popular majority, like Hitler and Mussolini (but unlike FDR, whose overwhelming popular majorities might at least assuage some concerns about that assumption of power). Guido then, at least according to Gerstein's account, actually advocated removing the sitting president from office in the upcoming election as a restorative palliative to the democratic structure.

Whether or not Guido's words violated the ethics codes, for a federal judge to advocate defeat of a candidate in a public forum -- by use of explosive and very, very weak analogies to two of history's most infamous political villains -- constitutes a serious lack of judgment, no matter how cleverly he words his statements and no matter what caveats he inserts. If truly concerned about the "legitimacy" of our courts and our democratic institutions, Guido should have paused a minute . . . and remained silent.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.