My new column at The Hill explains why Judge Aileen Cannon’s now-vacated rulings in favor of Donald Trump were incredibly bad judging, but not unethical.
Here is the gist:
The Hill
Drawing the line between terrible judging and judicial misconduct
by Steven Lubet, Opinion Contributor - 12/15/22 8:00 AM ET
If there were a year-end list of the worst judicial decisions of 2022, a top spot would surely go to U.S. District Judge Aileen Cannon’s orders in the Mar-a-Lago search warrant case.
Nonetheless, there is a crucial line (articulated more than 150 years ago) between a terrible ruling and an unethical one, which some of Cannon’s critics have attempted to obscure.
As chief judge, it was also Pryor’s obligation to review a set of ethics complaints filed against Cannon, charging her with political favoritism and “laughably bad” judging in the Trump case.
Pryor dismissed all of the complaints. Under the relevant federal statute, he explained, accusations relating to “the merits of a decision” cannot be the basis of a misconduct finding [which] “preserves the independence of judges.”
The attempted weaponization of judicial ethics complaints is not a new phenomenon. It dates back to times even more contentious than our own.
On May 24, 1854, a Black man named Anthony Burns was seized in Boston by a deputy federal marshal, pursuant to a warrant under the Fugitive Slave Act of 1850.
Fortunately, Richard Henry Dana, among the most prominent attorneys in New England, stepped forward to represent the prisoner. Dana tried every conceivable line of defense. He challenged the legitimacy of the arrest warrant, accused [the] main witness of perjury for money and presented a series of “alibi” witnesses.
But the prisoner’s own words were sufficient to prove [to Commissioner Loring] that he was “the Anthony Burns named” in the warrant.
Loring was also the sole judge of the Suffolk County Probate Court. More than 12,000 citizens signed a petition to the state legislature seeking his removal [as] morally unfit for the Massachusetts judiciary.
Surprisingly, Dana himself stepped forward as Loring’s most prominent defender. Although he continued to excoriate Loring’s decision, Dana argued that judicial independence would suffer if he were ousted from office.
Cannon’s detractors should heed Dana’s admonition: “If you remove Judge Loring because he executed the Fugitive Slave Law, other judges, here or elsewhere, may be removed because they do not.” The same holds true today. Nine of the 13 chief circuit judges – who initially screen ethics complaints – are Republican appointees. The validation of politicized ethics charges would be more likely to harm progressives than conservatives.
You can read the entire essay at The Hill.
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