Posted 12:53 PM by Robert

Davis Descending L: The Volokh Derailment

Is it hard to imagine what the reaction of the judge hearing the Kobe Bryant case would be if one of Mr. Bryant's lawyer's, annoyed that he had not been granted access to Mr. Bryant's accuser's medical records, were to step outside the courtroom and say to the media something like:

"You know who's the judge in this case, right? Do you think my client's rights are going to have much of a chance of surviving? I wouldn't bet on it. Some other judges would do the right thing, but not this one. Those judges are there to protect people's rights under the equal protection clause of the Constitution, no matter who's involved, and a lot of people don't like it. That's their problem, not mine."

No. It is not hard to imagine. That lawyer would be severely sanctioned, perhaps after the trial but likely right away - and quite properly so. He would be transparently attempting to influence the outcome of the legal proceeding in which he, his client and the judge are involved by an appeal to public opinion - and to undermine the decisions that the court makes that go against Mr. Bryant's interests. Such a strategy would reflect a common view that courts can be influenced by manipulating public opinion, a view as expressed today by Los Angeles Times in connection with the pending Ninth Circuit en banc proceeding:

When they decide how ... general statements apply to specific cases, judges ... are influenced by public opinion. "Most judges do not stray far from public opinion," said Howard Gillman, a professor of political science and law at USC.

But suppose some commenter attempted to minimize such an offense by arguing that such a statement does not seem to be particularly harmful on its own: It doesn't tell the public anything about the judge's likely future decisions about the case beyond what the judge himself said, and while it suggests that the judge's personality may affect the outcome of the case, that's hardly a secret. In fact, the statement's assertion of judicial independence might actually be helpful to the public discussion.

Such a commenter would be met with the rather obvious retort that his argument is obviously wrong, shows no depth of understanding of court processes and no serious understanding of how actual inflamed proceedings have operated in the past. One only has to review the O.J. Simpson trial, the Rodney King matter, and any number of other badly managed court proceedings to understand why courts desperately need to control the statements made by participants in their proceedings while those proceedings are pending.

This is all rather obvious stuff.

Yet, Judge Harry Pregerson -- one of the judges on the original California recall decision panel -- is quoted by the Los Angeles Times: "You know who's on the panel, right? Do you think it's going to have much of a chance of surviving? I wouldn't bet on it. . . . Judge Paez, Judge Thomas and I ?— we did the right thing," Pregerson said. "We're there to protect people's rights under the equal protection clause of the Constitution, no matter who's involved, and a lot of people don't like it. That's their problem, not mine."

And the significance of Judge Pregerson's mischief is minimized by Eugene Volokh with this specious and shallow argument:

Judge Harry Pregerson ... seems to have violated the Code of Conduct for United States Judges by his comments about the case. .... I'm not sure how important this provision (in its current breadth) is to the sound administration of justice. Moreover, Pregerson's particular statement does not seem to be particularly harmful on its own: It doesn't tell the public anything about Pregerson's likely future decisions about the case beyond what the original opinion itself said, and while it suggests that the makeup of the en banc court may affect the outcome of the case, that's hardly a secret. In fact, the statement's assertion of judicial independence might actually be helpful to the public discussion.

Why does Professor Volokh not "get" that this is a case involving inflamed political and even racial issues in which the legitimacy and public acceptance of the relevant court decisions are essential. Indeed, it is not all that hard to imagine a set of facts emerging in the last days of this campaign that could result in serious civil unrest - but statewide, not just in the virtual holocaust of Los Angeles, as resulted in 1992 as from another ill-managed legal proceeding. Why is it so hard for Professor Volokh to "get" that Judge Pregerson's comment is a deliberate attempt by that federal judge to influence the outcome of the en banc panel through manipulation of public opinion, and to undermine the legitimacy of any en banc decision overturning his own incompetent, partisan screed?

What Judge Harry Pregerson did is a very serious transgression of judicial ethics - and Professor Volokh's minimization of that transgression is a serious lapse of judgement.