Judges blogging?

As we recently noted here, Judge Pilshaw recently entered the blogosphere with this initial entry reporting on a sentencing case she had completed a day or two before. When I talked about this with most of my colleagues, almost uniformly the first reaction was "Can a judge do that?"

An anonymous response asked the same question on Judge Pilshaw's blog and her response was:

I am perfectly free to discuss this case. I think you may be incorrectly referring to Canon 3 of the Code of Judicial Conduct. Paragraph (9) of that canon states: "A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonable be expected to affect its outcome or impair its fairness..."Obviously this is not a pending matter. Judges often comment about cases when they are over.

We approached our colleague and resident blogger Meryl Carver-Almond, for some insight. She is quite sensitve to judicial ethics, having just completed a stint as a judicial clerk. Here is her guest-blog on the subject:

Let me start by saying I think more judges should blog. I believe our entire judiciary system suffers from an image problem that would be helped if the general public knew more about judges and the judicial process. Of course, there will always be extremists who throw around terms like "activist judge" when a decision doesn't go the way they would like. On the whole though, it's much harder to criticize a judge personally if you know that he or she is a basically good, well-reasoned person who just sees an issue differently than you do. How the courts work is such a mystery to even well-educated non-legal people. Done correctly, judicial blogging can only help to inform the general public.

Judicial blogging can also help inform us as lawyers. After all, aren't judges supposed to be the best of us? Why not have them sharing their knowledge in easily accessible forums? Particularly those frequented by young lawyers such as websites and blogs.

But back to those pesky ethical rules--what are the limits on what a sitting judge can blog about?

Of course, all of the general rules that apply to judges still apply when a judge starts blogging--for example Canon 1 which requires that a judge shall uphold the integrity and independence of the judiciary.

More specifically, though, Judge Richard Posner of the Seventh Circuit Court of Appeals (and a blogging judge), has this to say,

"[T]here are two things that, as a judge, I can't talk about in public (and this is in public). One is pending cases, which means (in any court, not just mine) cases in which all possibilities of further proceedings, such as an appeal to the Supreme Court, have not yet been exhausted. Oh I can mention a case, e.g., Grokster, which Tim discussed and linked to, or even talk around it a bit, but I can't comment directly or indirectly on the merits of the decision. . .

"[S]econd, I can't comment about any current political campaigns, the presidential or any other, or candidate . . . ." (Source.)

This summary seems to be dead on with the Kansas Code of Judicial Conduct. Specifically, Canon 3(B)(9) provides that a judge shall not make comments that might impair the fairness of any proceeding. The commentary then clarifies that a case is “pending” throughout any appeal and until a final disposition of the case has been made. Canon 5(A) prohibits most political commentary and advocacy.

Canon 4 is also at issue. Canon 4(A) requires judges to "conduct all of the judge's extra-judicial activities so that they do not . . . cast a reasonable doubt on the judge's capacity to act impartially as a judge [or] interfere with the proper performance of judicial duties." It's easy to see how a blog post could indicate to parties that a judge was pre-judging a case, or lead to a judge having to recuse himself or herself from a case in order to avoid the appearance of impropriety. At the same time, Canon 4(B) indicates judges should "speak, write, lecture, teach and participate in other extra-judicial activities concerning the law . . . ."

Given the constraining and somewhat confusing state of the rules, it's easy to see why very few judges are blogging. In an hour of searching, I found three. Judge Posner, who blogs at the "The Becker-Posner Blog; Judge Nancy Gertner, a U.S. district judge in Massachusetts who blogs on Slate.com's "Convictions" blog; and Judge H. Lee Sarokin, a former Third Circuit Court of Appeals judge who blogs at "X-Judge". With the exception of Judge Sarokin--who, although wonderful to read, is perhaps a little more informal--the blogs feel more like journal articles repackaged in a form most likely to reach a new, more technologically advanced audience. They feel like respectable legal scholarship. They are interesting to me as a young lawyer, and I would like to see more judges blogging in this manner.

Here are a few good links for anyone interested in reading more:

"Bench Blogging", an article on blogging judges from the National Judicial College with a list of do's and do not's.

An interview with Judge Richard G. Kopf, U.S. District Judge, Nebraska, who cited a legal blog in his opinion in United States v. Bailey, 369 F. Supp. 2d 1090, 1092 (D. Neb. 2005).

An interview and a podcast (scroll to center of the page) with Judge Gertner about being a blogging judge.

Thanks Meryl!