Judge Posner Responds To His Comments Concerning Hively v. Ivy Tech

During the AALS 2017 conference, Judge Posner appeared by phone on a panel about Bill Eskridge’s work on legislation. (Judges Posner and Katzmann, who both appeared remotely, had trouble hearing the discussion; I heard everything loud and clear). Many of his comments concerned Hively v. Ivy Tech, which was argued before the en banc 7th Circuit back in November. I tweeted a number of his comments, and blogged about them here. After I published the post, I exchanged several of emails with Eric Segall and Judge Posner concerning the propriety of his comments. Judge Posner has asked me to post his response, which I will gladly do.

For this exchange to make sense, I first post an email I sent to Judge Posner:

The acoustics in the room were excellent, and I heard everything that was said quite clearly. (It was very frustrating to everyone on the panel, and in the audience, that you and Judge Katzmann couldn’t hear anything). The event was recorded. In the event that I did not correctly transcribe any of your comments, I would be happy to post a correction.

I’ll take it from your earlier email that you are not a regular reader of my blog. I’ve been writing about your and your views on legal ethics for years now. It would be impossible to summarize all of posts I’ve written. To grossly oversimplify, there is a world of difference between a judge asking questions during arguments that reveal his thinking, and making those comments after the case has been submitted in public forums. In the court, both sides are present, and during opening or rebuttal, can address the point. Additionally, parties can submit supplemental briefing, such that all judges can review them. Your solo comments at AALS would have likely gone unnoticed, but for my tweets. There is no formal mechanism to submit supplemental briefs for an extrajudicial comment.

I recognize you disagree, and contend there is no difference between comment inside and outside of the court. But as a matter of practice, you stand alone. I have never seen another Article III judge, when asked to discuss a pending case, actually address the question. Unprovoked, you decided to bring up Hively. There were countless other examples you could have used that would have made the same point, without implicating a live case. That you are the only judge who holds this view doesn’t necessarily mean you are wrong, but it should cast a serious doubt on the practice.

If you’d like to post something in reply to my comments above, I’d be happy to oblige.

Here is a second email I sent to Segall and Posner:

I don’t think any comments on the case were appropriate. Stating that he [Posner] was surprised Eskridge thought the case was hard suggests that Posner thought it was easy. This tipped his [Posner’s] hat, and was not appropriate. Especially since unprovoked, the prudent course would have been to use a mundane example, about vehicles in the park or something else.

After a several back-and-forths, Judge Posner sent me this reply, which I post in its entirety.

In response to the comments in your blog on my comments at the California audioconference on statutory interpretation (my participation having been limited to the telephone) of last Friday, I have, to begin with, no quarrel with either Canon 3(A)(6) of the Code of Conduct for United States Judges, which states that “A judge should not make public comment on the merits of a matter pending or impending in any court. A judge should require similar restraint by court personnel subject to the judge’s direction and control. The prohibition on public comment on the merits does not extend to public statements made in the course of the judge’s official duties, to explanations of court procedures, or to scholarly presentations made for purposes of legal education” (emphasis added). Nor have I any quarrel with the ABA Model Code of Judicial Conduct 2007, RULE 2.10, Judicial Statements on Pending and Impending Cases, which states that “A judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court, or make any nonpublic statement that might substantially interfere with a fair trial or hearing.”

I don’t think I violated either rule by asking Professor Eskridge what he thought of the Hively case, a case pending in my court that was argued en banc this past November, involving employment discrimination against a lesbian and challenged as a violation of the Civil Rights Act of 1964. Eskridge is not only the foremost law professor in the field of homosexual rights; he is also one of the foremost law professors in the field of statutory interpretation. In retrospect I’m surprised that my court didn’t ask him to file an amicus curiae brief in the Hively case. I don’t see how, had we done that, we could have been charged with violating either the federal or the ABA rule, and I don’t think my oral inquiry of him could be thought a violation either. After all, all I asked him was what he thought of the case—a case right down his alley given that it involves both statutory interpretation and gay rights.

I also want to take issue with your statement that “Stating that he [Posner] was surprised [that] Eskridge thought the case was hard suggests that Posner thought it was easy.” No, I am not Eskridge! I am not the leading legal scholar on homosexual rights! Given his strong commitment to those rights I would have expected him to consider it an easy case for the plaintiff. Apparently I was wrong.

You say: “To grossly oversimplify, there is a world of difference between a judge asking questions during arguments that reveal his thinking, and making those comments after the case has been submitted in public forums. In the court, both sides are present, and during opening or rebuttal, can address the point. Additionally, parties can submit supplemental briefing, such that all judges can review them. Your solo comments at AALS would have likely gone unnoticed, but for my tweets. There is no formal mechanism to submit supplemental briefs for an extrajudicial comment.” That’s an amusing comment. You are saying that your tweets generated controversy over my comments. Therefore you must like generating gratuitous controversy. And there is no need for a “formal mechanism to submit supplemental briefs for an extrajudicial comment.” We frequently receive supplemental briefs based on extrajudicial information or argument. And the comments of mine that you quote or paraphrase to generate controversy had mainly to do with the question whether the only valid form of statutory interpretation is interpretation of the intentions and understandings of the legislators who passed the statute. I believe the answer is no, a position I defend at length in a forthcoming book. (The example I like to give is the Sherman Act, passed in 1890. For the last thirty years or so the Act has been interpreted in the light of current understandings of the economics of competition and monopoly. Those understandings did not exist in 1890. Therefore interpretation of the Sherman Act today is not interpretation of the original understanding of it.) I don’t know what you think about theories of statutory interpretation.

You mention my having asked Eskridge: “What do you think about the lesbian case”? (i.e., Hively) or equivalently “What do you think of the lesbian case”? You refer without specificity to my “surreal” remarks; does that comment apply just to my Eskridge questions or to everything that I said that you quote? I wonder too, given how bad the acoustics at the conference were for those participating by telephone (Katzmann and I), how accurate your quotations are.

You note that I said I “thought it odd that Eskridge would think the [Hively] case a close one.” And you say “Whether the case is close or not is a matter for the en banc court, not something that should be discussed online.” What is true is that the en banc court will decide the case. But given Eskridge’s strong identification with the gay-rights movement, the natural expectation would be that he would support the plaintiff. Hence the oddity: merely mentioned, not discussed.

Suppose I had said at oral argument that Professor Eskridge’s extensive writings on homosexual rights provided strong support for Hively’s case. Would that have been improper? Surely not. Judges at oral argument are constantly throwing such curve balls at the litigants, often revealing how they are likely to vote in a case by their questions and comments. Is that improper? If so, the entire Supreme Court will have to be impeached. If it isn’t improper, why was my asking Eskridge what he thought about the case improper? Granted, he wasn’t a lawyer in the case, but he was far more knowledgeable than any of the lawyers, hence more worth listening to.

Often when judges or their law clerks are drafting judicial opinions they have recourse to materials, including online materials, that had not been cited or mentioned in the briefs or at oral argument. Is that improper? Suppose I’d said nothing at all at the conference, just listened. And then suppose I were to write an opinion in a case (Hively or another) involving gay rights, and in it expressed disagreement with what I had heard Professor Eskridge say at the conference. Would that be improper?

Another point anent Eskridge: if it’s improper for a judge ever to comment publicly on a pending case, why isn’t it improper for a law professor–you for example–to do so? For a judge on the panel may read you, and be convinced, and convince the majority of his court that you, the professor, is right–yet without the lawyers having had a chance to rebut you. Is that fair? Is that consistent with the adversary system? The comments of mine that you quote or paraphrase have mainly to do with the general question of whether the only valid form of statutory interpretation is interpretation of the intentions and understandings of the legislators who passed the statute. I believe the answer is no, a position I defend at length in a forthcoming book. I don’t know what you think.

You mention my having asked Eskridge “What do you think about the lesbian case”? (i.e., Hively) or equivalently “What do you think of the lesbian case”? You refer without specificity to my “surreal” remarks; does that comment apply just to my Eskridge questions or to everything that I said that you quote? I wonder too, given how bad the acoustics at the conference were for the telephone participants (Judge Katzmann and me), how accurate your quotations are.

You note that I said that I “thought it odd that Eskridge would think the case a close one.” And you say “Whether the case is close or not is a matter for the en banc court, not something that should be discussed online.” Where do you get that idea from? Suppose I had said at oral argument that Professor Eskridge’s extensive writings on gay rights provided strong support for Hively’s case. Would that have been improper?

The broader point which you and my other critics do not mention is that judges frequently reveal how they are going to decide a case by their questions and comments at oral argument. Is that improper? If so, the entire Supreme Court will have to be impeached. If it isn’t improper, why was my asking Eskridge what he thought about the case improper? Is the courtroom some magical site not to be compared to an academic conference? That is an especially odd thought for California, given that the Ninth Circuit televises its oral arguments, thus inviting the populace to evaluate the case before it’s decided.

Often when judges or their law clerks are preparing judicial opinions they have recourse to materials, including online materials, that had not been cited or mentioned in the briefs or at oral argument. Do you consider that improper?

And by the way, if it’s improper for a judge ever to comment publicly on a pending case, why isn’t it improper for a law professor–you for example–to do so? For a judge on the panel may read you, and be convinced, and convince the majority of his court, that the professor is right–yet without the lawyers having had any chance to rebut the professor. Is that fair? Is it consistent with the adversary system?

Note too that I hadn’t been asking for Eskridge’s opinion regarding the Hively case in order to seek his advice as to how I should vote in the case. I give no weight to Eskridge’s opinion because of the deep gulf between his and my conceptions of statutory interpretation. I merely thought it odd that he of all people would think the case a close one–so close as to make a rejection of the plaintiff’s claim the arguably correct result. I was interested in his opinion about the case as a curiosity and a source of insight into his approach to statutory interpretation, but not interested in it in the sense of wanting to give weight to it in my own deliberations about the case.

I want finally to paraphrase two comments by Professor Segall: (1) Are we sure it is inappropriate for him [i.e., for me] to listen to an expert in the field (I have written extensively about gay rights, both academically and judicially, including the opinions of my court invalidating Indiana’s and Wisconsin’s prohibitions of same-sex marriage), assuming [he, i.e., I] said nothing material about the case? Are judges forbidden to seek opinions from anyone other law clerks and fellow judges even as part of an academic conference—and the conference that Eskridge and he [i.e.,] participated in was an academic conference.

As I noted in my first email to Judge Posner, I heard everything loud and clear, and transcribed what I heard to the best of my ability. When AALS releases the podcast, I will be happy to make any corrections.

There is one criticism Judge Posner did not reply to.

But as a matter of practice, you stand alone. I have never seen another Article III judge, when asked to discuss a pending case, actually address the question. Unprovoked, you decided to bring up Hively . . . . That you are the only judge who holds this view doesn’t necessarily mean you are wrong, but it should cast a serious doubt on the practice.

If any readers are aware of any federal judges who voluntarily discuss pending cases in public forums, please contact me.

 

Read More