Hands Off Justice Nathan Hecht

Article III Groupie wasn't exactly kind to White House Counsel Harriet Miers during her unsuccessful quest for a Supreme Court seat. A3G poked fun at Miers's constantly changing hairstyles, her qualifications for the post, her knowledge of Supreme Court history, and her taste in books.

But A3G can't condone what's happening to Miers's onetime paramour, Texas Supreme Court Justice Nathan Hecht. The Texas State Commission on Judicial Conduct is criticizing Hecht for the interviews he gave to the news media concerning Miers, on the theory that he violated the canon prohibiting a judge from "advanc[ing] the private interests of the judge or others." More details here.

A3G hasn't taken a close look at this issue, so perhaps she's missing something; but at first glance, this strikes her as dubious. Were the Third Circuit judges who testified before the Senate about Justice Samuel A. Alito acting unethically? What about Judges Walter Stapleton and Alex Kozinski, when they testified in support of their former law clerk, newly confirmed Judge Brett Kavanaugh?

What about a judge who writes a letter of recommendation for a former law clerk, or who agrees to serve as a reference for that clerk? What if a judge recommends a former clerk for a job -- e.g., a Supreme Court clerkship -- in the hope of burnishing his own judicial prestige and influential network of ex-clerks (e.g., the Luttigators)?

Isn't that judge "advanc[ing] the private interests of the judge or others"? And if so -- so what?

Comments

[DOD]

Knowing A3G’s disdain for the state judiciary as a whole, I offer only this paltry justification in defense of my defense of Justice Hecht’s defense: the implications of the Commission’s actions in Texas equally redound to the federal judiciary, and could well be used to thwart future classes of “The Elect” from so becoming.

A3G: Why would you bother to defend an icky state court judge?

[DOD]

You are quite correct Default that I do not frequent online dictionaries for reference or citation. That being said, relying too heavily on a dictionary of any kind in the practice of law is never an advisable course of action. That is precisely why the statutory and common law distinction that has arisen in Texas resulting from the election of our judiciary--and from which much consternation has rightly ensued--is all the more pertinent.

However, you are admittedly correct that parsing the language of the Judicial Canons will probably not prove as persuasive in the appeal of this admonition as the First Amendment arguments will no doubt be.

[Default]

Well DOD I guess we have different dictionaries, because when I went to www.m-w.com to look up "candidate" it told me that it meant the following: "one that aspires to or is nominated or qualified for an office, membership, or award."

Notice the nominated part? I did. Looks like the Commission did too.

[DOD]

It should come as little shock to A3G that supposedly nonpartisan political offices in my Great State of Texas are sometimes and sadly misused for perceived political advantage. A3G is absolutely correct that the justifications for the Commission’s admonition are dubious on their face.

The first canon the Commission found Justice Hecht to have violated prohibits the “lend[ing] of [judicial] prestige … to advance the private interests of … others.” TEX. CODE JUD. CONDUCT, Canon 2B (emphasis added). Even to a casual observer of any of Justice Hecht’s 120 some-odd interviews made the subject of the admonition, the purpose and content of his advocacy of Ms. Miers’ nomination to the United States Supreme Court was to advance the public interest, as he saw it, at stake in any High Court nomination. The second canon upon which the Commission based its admonition mandates that “[a] judge … shall not authorize the public use of his or her name endorsing another candidate for any public office.” TEX. CODE JUD. CONDUCT, Canon 5(2) (emphasis added). As even Webster’s plainly explains a “candidate” is one seeks election to an office, a “nominee” is one who has been appointed or nominated to an office. This distinction carries great weight in Texas because we elect our judiciary, as opposed to the federal bench, where justices are nominated.