Update (12:05 p.m., E.T.): Responding to a tweet from Ed Whelan, Posner has further articulated his view that Judge Gorsuch has a duty to condemn Trump, here. However, Posner completely ignores Judge Gorsuch’s obligation under Canon 5 of the Code of Conduct for United States Judges not to comment on the political conduct and statements of President Trump (see below), and Posner also ignores the other points made by this blogger, in tweets published more than an hour before Posner published his post.
That Judge Gorsuch would violate Canon 5 by proceeding as Posner suggests is particularly clear from this passage, in which Posner fantasizes about the lose-lose situation in which Gorsuch could put Trump, if he condemns Trump’s tweet — with Trump then forced to choose between telling Gorsuch “you’re fired!,” or allowing the nomination to go forward:
If Gorsuch condemns the “so-called judge” remark, and Trump retaliates by withdrawing the nomination, then Trump is condemning his own judgment. If Gorsuch bucks Trump—in the process, taking a very significant risk that he will lose the prize that Trump is holding out for him—the seriousness of Trump’s reckless behavior will be clear to all.
Canon 5 surely has fuzzy edges, but obviously it prohibits federal judges from making extra-judicial statements calculated to put a sitting president in a lose-lose situation.
Update 2 (11 p.m., E.T.): Welcome, Instapundit (Glenn Reynolds) readers!
Update 3 (Feb. 5, 12:15 a.m. E.T.): Another University of Chicago law professor, William Baude (who was a prolific, and thought-provoking, blogger even while attending Yale Law School, beginning in 2003), has published a much sounder analysis arguing, not unreasonably, that President Trump’s “so-called judge” tweet at minimum raises a “red flag,” given that in general political officials should not lightly question a court’s authority to act. To his credit, Baude does not overstate his case — Baude concedes that Trump’s tweet contains “just a hint” that the judge may lack authority, and Baude adds that “[i]n general, I do not think we should read too much into the President’s tweets . . . .” For those interested in Baude’s perspective, read the comments on his post, and Twitter replies.
Update 4 (Feb. 5): Welcome, Ethics Alarms (Jack Marshall) readers!
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This morning, President Trump criticized a federal district court decision issued yesterday which temporarily suspends Trump’s executive order banning travel into the United States from certain countries. In addition to criticizing the decision as incorrect, and predicting it will be reversed, Trump also mocked the judge who had issued it:
The tweet is odd for at least two reasons.
First, it’s unclear why a sitting federal judge would have any duty to condemn the President for mocking another federal judge. This point (referencing Rule 8.2 of the Model Rules of Professional Conduct) was made to Posner in several tweets, to which Posner has not yet responded (if he does, this post will be updated):
Further, it would appear that for Judge Gorsuch to saying anything, pro or con, about President Trump’s “so-called judge” remark would violate Canon 5 of the Code of Conduct for United States Judges, which generally bars judges from engaging in political activity. Even though Judge Gorsuch is a nominee to the U.S. Supreme Court, obviously no one can expect him during the confirmation process to offer his personal reactions to various political acts and statements by President Trump.
Second, Posner forgets that President Lincoln went way further than Trump in criticizing a federal judge who had issued a decision he thought was wrong (the Dred Scott decision). Further, Lincoln didn’t merely mock, in passing, a federal district judge. Lincoln articulated an elaborate, likely false, conspiracy theory implicating the Chief Justice of the United States, Roger Taney — specifically accusing Taney of engaging in an extra-judicial conspiracy with political figures to impose slavery nationwide.
This point was also made to Posner in several tweets, to which Posner has not yet responded (if he does, this post will be updated). Will Posner retract his call for Judge Gorsuch to condemn Trump for mocking a federal district judge for his obviously ridiculous order issued yesterday? Or will Posner also call on Judge Gorsuch to condemn Abraham Lincoln for his vile attack on Chief Justice Taney?