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The Honorable Judge Calabresi

The Curmudgeonly Clerk has done his usual fine job dissecting the trouble with Judge Calabresi's recent outburst to the American Constitution Society. Basically, may have crossed a line of ethical conduct for federal judges by advocating the removal of President Bush.

Now, let's face it, the fact Calabresi wants folks not to vote for Bush isn't the best-kept secret since the location of Saddam's WDM. And suggesting to members of the American Constitution Society that voting for Bush might be a bad idea could be the single most redundant political action ever done by a supposedly non-partisan entity. So I'm not going to go over whether the Honorable Judge dishonored his oaths: the Clerk's accusations speak for themselves. Instead, I want to examine two peripheral issues.

First, let's take one statement he's reported to have made. Like Prof. Volokh, I'm suspicious about how accurate the reporting has been--since I have but one original source of the quotations--but assuming it's correct, try this on for size:

Im a judge and so Im not allowed to talk politics. So Im not going to talk about some of the issues that were mentioned or what some have said is the extraordinary record of incompetence of this administration, he said.

"What some have said is the extraordinary record of incompetence in this administration." That's one of those statements that ranks right up there with "Just answer yes or no: have you stopped beating your wife yet?" for structural dishonesty. He has in fact talked about such incompetence by alluding to it. And his position speaks for itself, simply because one who didn't agree with the idea that the Bush administration was incompetent wouldn't mention someone else's opinion--without contrast--and then say that, because he can't talk about politics, he won't mention it.

Now, if Calabresi were as strictly textualist as Scalia, I'd say he might be able to get away with this with a straight face. Still, Calabresi isn't the name that first springs to mind when I think 'textualist.' I've no Lexis access at the moment, so I'm at a loss for a direct quote from a case, but I remember reading several of his decisions, and I can't imagine he'd have given a defendant such leeway in his own court. The man who wrote that horrible meat grinder tort case we read just doesn't seem to be the textual type. (Happy to be proven wrong on this, of course.)

And that comparison to Scalia brings us to the next point. Remember all the furor over the Duck Hunt of Doom, featuring a Justice and a Vice-President? All over the New York Times for days, right?

Well, as of today, what have we of Calabresi's speech in our 'Newspaper of Record?' According to this search, absolutely nothing. Now, I know, I know, you could say that Calabresi isn't a Supreme, so maybe it's not worth the notice of the Fading Lady. But then, Calabresi does sit on the Second Circuit, with his office in Manhattan; his bailiwick, as it were, is New York; and the honorable judge isn't exactly swiss cheese when it comes to his reputation. It's certainly news, and it's news in New York. Which the NYT sometimes pretends to cover.

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Calabresi doesn't sit in Manhattan -- he sits in New Haven. So he's not really news to New Yorkers, except when the Post or Sun need a silly story about how dumb those "activist, liberal judges" are. It's interesting that this is the only news that emerged from the ACS convention. A couple of conservative reporters go down there looking for some red meat and this is the best they can get? C'mon, I'm sure some of our liberal finest said something more juicy than this!
Calabresi doesn't sit in Manhattan -- he sits in New Haven. So he's not really news to New Yorkers, except when the Post or Sun need a silly story about how dumb those "activist, liberal judges" are. It's interesting that this is the only news that emerged from the ACS convention. A couple of conservative reporters go down there looking for some red meat and this is the best they can get? C'mon, I'm sure some of our liberal finest said something more juicy than this!
Hmm... I'm going off the Sun story: "Guido Calabresi, a judge on the 2nd Circuit Court of Appeals, which sits in Manhattan." And as far as I knew, the 2nd Circuit did sit in Manhattan. I'll check, and if that's wrong, issue a correction.
The 2nd Circuit sits in Manhattan, true. Guido does come to New York a few times a year as a result, but his office is in New Haven, where he has worked for many, many years. The 2nd Circuit has judges in Connecticut, Vermont and Puerto Rico as well as New York. Here's Guido's address: http://www.ctd.uscourts.gov/calabres.htm
Maybe as a judge, Guido shouldn't have said those things. However, what did he say about Bush that was wrong? If a private citizen had said the exact same things, only arch-right-wingers would disagree with those conclusions.
Assuming that one defines those who would disagree as 'arch right wingers' I suppose one could make that case--though it's a fairly weak one. Nonetheless, Mr. Prentiss, the Honorable Calabresi is a judge. Now, if he wishes not to be, resignation remains an option. Until then, he should be bound by his oaths.
You're right, Mr. Rickey. Referring to the Bush administration's "extraordinary record of incompetence" was factually wrong. This administrration has been extraordinarily competent at robbing this country blind and bankrupting our nation and millions of our citizens. This is government of the few, by the few and for the few. Bush is creating here the greatest oligarchy since Soviet Communism. Whether these facts are stated by a judge like Guido Calabresi or a private citizen like me -- facts are facts. But, of course, facts, science and reality never get in the way of the lies, distortions and obfuscations of this administration and its sycophants.

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