Some reflections on my disheartening exchange with Judge Jones at last Thursday's Federalist Society convention—and its ominous implications for the future of legal debate
With respect to section IV on participation in FedSoc (and similar) debates—
I really hope the takeaway is *more* individuals with solid, principled disagreements with FedSoc should participate. There is a real risk these panels will be populated by Alan Colmes types, as Epps said in his remarks. The FedSoc does not need a B team of law professor Washington Generals to dunk on.
I watched the whole exchange on Friday and...wow, Judge Jones did not come across well. I understand Vladeck's personal....irritation, to put it mildly. However, his presence AND participation on this panel helped draw a huge red circle around how weak the arguments made by Judge Jones really are. No fair-minded person can walk away from that video and think Judge Jones acquitted herself honorably OR that she made her point effectively. That was only possible because Vladeck was both there AND made HIS point without taking the bait.
So I'm thankful Vladeck participated and did so in an effective manner. Thank you.
This might be a good time for a FedSoc panel discussion on how our Constitution, federal law and SCOTUS precedent strongly secure our right to express criticism of judicial conduct (and misconduct). It is alarming that yet another circuit court judge chose to launch a personal attack on one critic (with the apparent intent to intimidate other critics) instead of addressing the merits of the criticism of judicial conduct (or misconduct).
The timing of Judge Jones's public personal attack on a critic is, perhaps, even more alarming. Mere weeks ago--on October 30, 2024--at least two Fifth Circuit judges on a panel ordered that I be disbarred (No. 24-90007) for doing nothing worse that including statements in federal court filings exposing the criminal misconduct of federal judges. Nobody ever denied that the judges that I identified committed the federal crimes that I identified. Nobody ever even contended that anything I wrote was false or even misleading as to any fact or legal authority. Moreover, in the decision purporting to justify my disbarment, at least two Fifth Circuit judges knowingly misrepresented the record and knowingly violated our Constitution and federal law and flouted controlling SCOTUS precedent.
On November 12, I submitted an electronic copy of a petition for en banc review. I showed how many decades of SCOTUS precedent secures to attorneys the same right as every other U.S. citizen enjoys. Under our Constitution, “the people are sovereign,” and we “speak” and “use information” regarding public issues for “enlightened self-government,” including “to hold officials” (public servants) “accountable to the people.” Citizens United v. FEC, 558 U.S. 310, 339 (2010). Accord id. at 339-341, 344-350. Our “political speech must prevail against laws that would suppress it” by “design or inadvertence.” Id. at 340. “Government” must “prove that” action taken against critics “furthers a compelling interest and is narrowly tailored to achieve that interest.” Id. Judges are “constitutionally disqualified from dictating” (in the manner they too often do) “the subjects about which” attorneys “may speak” or which “speakers” may “address a public issue.” Id. at 347. Citizens United protected state-created corporations; so it necessarily protects state-licensed attorneys.
Hopefully to play the same role he did in this panel and showing EJ why their approach is bad! In a thoughtful, calm, logical manner. Not to support EJ's abuse of the legal system or to support EJ's objectively bad positions on the actual environment.
Too many judges (including Judge Ho and Judge Jones) intentionally abuse the powers they were delegated (solely to support and defend our Constitution) to attack people in knowing violation of our Constitution.
“[T]he law” (including the First, Fifth and Fourteenth Amendments) “gives judges as persons, or courts as institutions” absolutely “no greater immunity from criticism” (or the Constitution) “than other persons or institutions.” Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829, 839 (1978) (cleaned up). Attorney “speech cannot be punished” merely “to protect the court as a mystical entity” or “judges as individuals or as anointed priests set apart from the community and spared the criticism to which” all “other public servants are exposed.” Id. at 842.
Mere “injury to [any judge’s] official reputation is an insufficient reason” for “repressing speech that would otherwise be free,” and “protect[ing]” the “institutional reputation of the courts, is entitled to no greater weight in the constitutional scales.” Id. at 841-842. Judges also cannot merely contend (as they did here) that “allegations of [judicial] misconduct” are merely “unfounded.” Id. at 840.
Even in 1774, the First Continental Congress (comprising many attorneys) emphasized that “freedom of the press” was among Americans’ “great rights” because it served the “advancement of truth” and “diffusion of liberal sentiments on the administration of Government,” including so that “oppressive officers” (including judges) can be “shamed or intimidated, into more honourable and just modes of conducting [public] affairs.” Roth v. United States, 354 U.S. 476, 484 (1957).
Steve, I have long enjoyed your NSL Podcast and commentary, despite disagreeing on a number of issues (and despite practicing in an unrelated field). I felt compelled to become a paid subscriber to your newsletter after seeing your truly impressive reaction to the panel discussion--both in the moment and since. Bravo.
Judges are people. Good and bad people are appointed to be judges. So what. The take away from this is three fold. First, going to the Federalist Society expecting ‘fair and balanced’ is like turning on Fox News and expecting the same. Second, life time appointments should stop and limits of some kind imposed. Third, even an unfairly ambushed Vladeck exhibits both a professionalism and delivers his responses with good humor and manners—naturally quick witted and generationally smart he proves more than a match for his main critic.
The issue is not at all whether judges are "[g]ood or bad people." The issue is that our Constitution was designed to protect us (the people) from judicial misconduct by specifically providing that federal judges may "hold their offices" only "during good behaviour." U.S. Const. Art. III. Consider also the text of judges' two oaths of office (5 U.S.C. 3331 and 28 U.S.C. 453). Judges never were (and never should be) expected to have the power to knowingly violate our Constitution.
I agree with WRD, I hope you will participate on panels of all types in the future. Your empirically based arguments are strong, and your voice needs to be heard, especially by "skeptical" audiences. (No doubt you realize your book The Shadow Docket has already rattled a few cages.)
Judge Jones, in contrast, did no favors to herself or her "arguments" -- merely serving, I think, to underline your points. You stayed cool under fire. Bravo!
With respect I dissent. Indeed, Professor Vladeck's solution--to remain engaged with student programs and to avoid Conferences of the sort attended by Judge Jones for now is generous in that is conveys a conclusion that the views of some members of the Federalist Society deserve consideration. It is also courageous in the sense that the "concern" about provoking violence against judges seems to apply only to what Judge Jones regards as left wing criticism; the fact that there are a number of Judges in other circuits who are under full time security protection for having reached decisions that do not accord with the views of the Society members and have been criticized in the Conferences and public sessions of the Society seems to have escaped Judge Jones notice.
Wow-just wow as one commentator below stated. That there was a "file" prepared in advance (!) on your public expressions and writings (I literally gasped) by one of the panelists (see at 1:17 appx) truly shocked me-especially prepared by a panelist who had expressed a deep reverance for the First Amendment (when citing the Alabama case) only moments prior to this verbal attack. There is so much to say on all this-but now I am loathe to expound more-lest I be risk being "confronted" with my public statements in some kind of public forum in the future (!). We all have a professional duty of responsibility to conduct ourselves in public with discernment and ethical standards when critiquing our legal profession in general, but this whole scenario gives the appearance that you were indeed "hand-picked" and that this was a set-up from the git-go as we say out here in the west.
Judge Jones provided a textbook example of how judges violate our Constitution by attacking critics instead of addressing the merits of criticism of judicial conduct. This is not even a novel violation of our Constitution and the duties of all public servants. More than 60 years ago, SCOTUS famously and repeatedly emphasized the unconstitutionality of public servants attacking the public they purportedly serve for mere criticism of public servants' public service.
Our “speech on public issues occupies” the “highest rung of the hierarchy of First Amendment values” and is “entitled to special protection.” Connick v. Myers, 461 U.S. 138, 145 (1983); Snyder v. Phelps, 562 U.S. 443, 452 (2011). See also Connick at 145 quoting Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964):
The controlling principle under our Constitution is that our “speech concerning public affairs” is … [a sovereign power, i.e.,] the essence of self-government. The First and Fourteenth Amendments” [ensure] “that debate on public issues [may] be uninhibited, robust, and wide-open, and [may even] include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
The “public interest in a free flow of information to the people concerning public officials, their servants” is “paramount,” so “anything which” even “might touch on an official’s fitness for office is relevant,” including judges’ “dishonesty, malfeasance, or improper motivation.” Garrison at 77.
Our Constitution secures our “privilege for criticism of official conduct.” New York Times Co. v. Sullivan, 376 U.S. 254, 282 (1964). Courts must “support” the “privilege for the citizen-critic of government” (id.) because such “privilege is required by the First and Fourteenth Amendments” (id. at 283). Judges cannot “give public servants an unjustified preference over the public they serve” by denying “critics of official conduct” the “immunity” that the sovereign people “granted” to “officials.” Id. at 282-283.
“(I)t is a prized American privilege to speak one’s mind” on “all public institutions,” including in “vigorous advocacy.” Id. at 269 quoting NAACP v. Button, 371 U.S. 415, 429 (1963) (“the First Amendment” necessarily “protects vigorous advocacy” in litigation) (collecting cases). No “regulatory measures” (court rule or ruling or other judicial statements or conduct), “no matter how sophisticated,” can “be employed in purpose or in effect to stifle, penalize, or curb” our “exercise of First Amendment rights.” Id. at 439. Accord Sullivan, 376 U.S. at 269 (dispensing with all “mere labels” abused as “formulae for the repression of expression”).
“Disheartening” indeed. Although, an understatement and I am sorry you experienced such an unprofessional situation.
I’m a new subscriber and feel fortunate to be here. I depend on your intellect and experience to inform me and am grateful for your work and energy! Thank you!
In 2016 I labeled what was happening, “The Republican-Federalist-Putin Coup Against America”, and faced much criticism using it while writing.
My research and observations led to its formation. Probably the #1 question was why the inclusion of, “Federalist”?
My label is a summary of course, each subject extensive but I think it fits many scenarios we continue to face.
First of all, you have only bolstered my respect for you, Prof. Vladeck, for not only accepting the invitation to speak at the Federalist Society event, but for maintaining your composure while under attack (and without any meaningful 'moderation'). And to me, that sort of integrity is just as important an element of character that our nation should expect (demand!) from judges and justices who make up our judiciary. I believe that Judge Jones and Judge Ho demonstrated an unbefitting lack of temperament for a Federal Judge. These are individuals who are supposed to be held to the highest standards of character, impartiality and morality.
For the past several years, we've witnessed similarly questionable behavior from members of the Supreme Court involving ethical lapses, inappropriate displays of partisan affiliation, and refusals of recusal when clear conflicts of interest were demonstrated. On top of that, there has been persuasive evidence of the current Court using improper (and unjust) means to achieve decisions that clearly favored the conservative movement, including blatant misrepresentation of facts in a case (Kennedy v. Bremerton School District) and claimed injury that was demonstrated to be likely fabricated (303 Creative v. Elenis).
I am not a lawyer, but as an engaged citizen who does the work to remain informed about my government, I can tell you that even if it might be legally permissible, I think that truly good law must not come from abuses of the shadow (emergency) docket, or overturning precedent just because there is a change in the composition of the court. There must be pressures on these unelected, lifetime appointees to be true champions of justice, and I believe institutional reform, as Prof. Vladick so righteously argued, is not just essential but long-overdue.
I realized you’d be in the minority on that panel, but thought it is healthy to have different viewpoints represented. Surprised you were set up, but glad to know you held your own.
Keep on advocating for the proper way to view judicial independence. The country is better off as a result.
In my opinion, Edith Jones is a tired old crank whose expertise in the area of Constitutional Law and the proper role of the federal judiciary in our government is about as deep as a layer of graphene. If I were you, I’d wear her silly opprobrium as a gem in your crown. If Charles Alan Wright were still alive today, I’m confident that his position on these issues would be closer to yours than to hers.
Regarding the Federalist Society - seems to me the invitation has to be extended in good faith, and I haven’t seen any evidence lately that FedSoc can meet this standard. Otherwise, as you say, your attendance is entirely for the purpose of stagecraft, while giving FedSoc the cover of claiming that they seek out diverse viewpoints. I’m quite sure there are better uses of your time, and audiences who will actually listen to and think about what you say. Even within the judiciary, I’m hopeful, at least, that there are many judges who are willing to meaningfully engage with the subject of judicial reform.
As for that event - to echo others, wow. This newsletter is consistently excellent, and when I do (rarely) get frustrated with elements of your arguments, it’s almost invariably because I think you’re going out of your way to be even-handed about the judiciary and to give particular judges/justices more benefit of the doubt than I believe they’re entitled to. So if appellate judges with lifetime appointments can’t handle your institutional critiques of the judiciary and proposals for reform - well, the phrase that comes to mind is thin-skinned partisan hacks. To your credit, you take your public-facing teaching role seriously, so I understand that you are likely unwilling to agree with my characterization!
I had to upgrade my subscription so I could comment here... Anyway, this article is terrifying given the response from the audience and the audacity (or maybe delusions of persecution of Judge Jones). But I also wanted to say, as a patent practitioner that I agree (and most patent practitioners do) that forum shopping in the patent space has undermined the public's confidence in patents. Also, patent owners' confidence. And investors' confidence. This isn't just about the propriety of forum shopping, it's about the economy in a very, very big way. On the other hand, what happened to Judge Newman was atrocious and also harms the patent system. Many patent practitioners (though, not all, by any stretch) view her as the last true patent jurist on the Federal Circuit. And the last true buffer between what the law says and what mischief the Supreme Court can manage to perform. Of course, given the overall state of our federal dysfunction, and increased groupthink within all 3 branches starting at the end of January, the patent system being undermined might be the least of our worries.
"...the inability of people who should know better to distinguish between principled criticisms of judicial behavior and personal attacks on judges is a serious problem for our discourse..." It's been my lifetime experience that when people turn to personal comments, as opposed to substantive comments, they've demonstrated that they have no substantive comments to make. They're responding in a completely defensive mode because they know, at some level or another, that your comments are correct. Pulling out the folder, and reading the tweets was merely performance and a display of arrogance. Ethical behavior is a top-down phenomenon in any organization. With Trump at the top of the government, this behavior is hardly surprising and will become more wide-spread and common. This is also the behavior of some of the conservative justices on the Supreme Court - hubris, arrogance and denial. Everyone needs to examine their beliefs to determine if they're the result of self-centeredness or logic. If you're driven by logic, you can change your view. I agree with your position of differentiating between participating in student panels because most students are still formulating their opinions and you can provide some thoughtful insights. I have to admit, after reading your essays for a while, I find that you seem to go out of your way to stay as impartial as possible; as diplomatic as possible. Considering that, Judge Jones' comments are very revealing, and petty. I also fully agree with your footnote about the role of a moderator and you were set-up.
I am very reportedly distantly related to John Tyler-and even though Tyler was one of the worst presidents in America's History (but the new administration will make him look like a "piker" to be sure) so I vote that we make "him" a Whig.
Edith Jones has been scolding progs on behalf of trogs for 40 years. Take it as a badge of honor, as FDR did re his critics. https://en.wikipedia.org/wiki/1936_Madison_Square_Garden_speechcritics.. Keep shining a light on the shadow docket and forum shopping for single-judge divisions of district courts.
I hope you can also push back against Trump's ploy to evade Senate review of his cabinet nominees via recess appointments. The Recess Appointments clause (Art. II. Sec. 2, clse. 3) isn't expressly limited to emergencies. But he also seems bent on exercising his power under Art. II, Sec. 3 to adjourn Congress "to such Time as he shall think proper[.}" The latter authority is limited to "extraordinary occasions." Shouldn't the Recess Appointments clause be read in pari materia with the adjournment power, particularly given that Trump seems to see them as a package? And there's something incongruous about his declaration of "emergencies" months before he takes office and across the board, no?
With respect to section IV on participation in FedSoc (and similar) debates—
I really hope the takeaway is *more* individuals with solid, principled disagreements with FedSoc should participate. There is a real risk these panels will be populated by Alan Colmes types, as Epps said in his remarks. The FedSoc does not need a B team of law professor Washington Generals to dunk on.
I watched the whole exchange on Friday and...wow, Judge Jones did not come across well. I understand Vladeck's personal....irritation, to put it mildly. However, his presence AND participation on this panel helped draw a huge red circle around how weak the arguments made by Judge Jones really are. No fair-minded person can walk away from that video and think Judge Jones acquitted herself honorably OR that she made her point effectively. That was only possible because Vladeck was both there AND made HIS point without taking the bait.
So I'm thankful Vladeck participated and did so in an effective manner. Thank you.
I agree. I have to wonder if this was a set-up…very unprofessional atmosphere.
This might be a good time for a FedSoc panel discussion on how our Constitution, federal law and SCOTUS precedent strongly secure our right to express criticism of judicial conduct (and misconduct). It is alarming that yet another circuit court judge chose to launch a personal attack on one critic (with the apparent intent to intimidate other critics) instead of addressing the merits of the criticism of judicial conduct (or misconduct).
The timing of Judge Jones's public personal attack on a critic is, perhaps, even more alarming. Mere weeks ago--on October 30, 2024--at least two Fifth Circuit judges on a panel ordered that I be disbarred (No. 24-90007) for doing nothing worse that including statements in federal court filings exposing the criminal misconduct of federal judges. Nobody ever denied that the judges that I identified committed the federal crimes that I identified. Nobody ever even contended that anything I wrote was false or even misleading as to any fact or legal authority. Moreover, in the decision purporting to justify my disbarment, at least two Fifth Circuit judges knowingly misrepresented the record and knowingly violated our Constitution and federal law and flouted controlling SCOTUS precedent.
On November 12, I submitted an electronic copy of a petition for en banc review. I showed how many decades of SCOTUS precedent secures to attorneys the same right as every other U.S. citizen enjoys. Under our Constitution, “the people are sovereign,” and we “speak” and “use information” regarding public issues for “enlightened self-government,” including “to hold officials” (public servants) “accountable to the people.” Citizens United v. FEC, 558 U.S. 310, 339 (2010). Accord id. at 339-341, 344-350. Our “political speech must prevail against laws that would suppress it” by “design or inadvertence.” Id. at 340. “Government” must “prove that” action taken against critics “furthers a compelling interest and is narrowly tailored to achieve that interest.” Id. Judges are “constitutionally disqualified from dictating” (in the manner they too often do) “the subjects about which” attorneys “may speak” or which “speakers” may “address a public issue.” Id. at 347. Citizens United protected state-created corporations; so it necessarily protects state-licensed attorneys.
Uh follow up to my own comment here:
Vladeck is now on the board of Earthjustice?
Hopefully to play the same role he did in this panel and showing EJ why their approach is bad! In a thoughtful, calm, logical manner. Not to support EJ's abuse of the legal system or to support EJ's objectively bad positions on the actual environment.
Ugh. No more "the Groups."
Well said.
This is very disturbing. I know it's the effing Federalist Society, but O Wow! The cloak of autocracy gets heavy very quickly. Very quickly.
Too many judges (including Judge Ho and Judge Jones) intentionally abuse the powers they were delegated (solely to support and defend our Constitution) to attack people in knowing violation of our Constitution.
“[T]he law” (including the First, Fifth and Fourteenth Amendments) “gives judges as persons, or courts as institutions” absolutely “no greater immunity from criticism” (or the Constitution) “than other persons or institutions.” Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829, 839 (1978) (cleaned up). Attorney “speech cannot be punished” merely “to protect the court as a mystical entity” or “judges as individuals or as anointed priests set apart from the community and spared the criticism to which” all “other public servants are exposed.” Id. at 842.
Mere “injury to [any judge’s] official reputation is an insufficient reason” for “repressing speech that would otherwise be free,” and “protect[ing]” the “institutional reputation of the courts, is entitled to no greater weight in the constitutional scales.” Id. at 841-842. Judges also cannot merely contend (as they did here) that “allegations of [judicial] misconduct” are merely “unfounded.” Id. at 840.
Even in 1774, the First Continental Congress (comprising many attorneys) emphasized that “freedom of the press” was among Americans’ “great rights” because it served the “advancement of truth” and “diffusion of liberal sentiments on the administration of Government,” including so that “oppressive officers” (including judges) can be “shamed or intimidated, into more honourable and just modes of conducting [public] affairs.” Roth v. United States, 354 U.S. 476, 484 (1957).
Steve, I have long enjoyed your NSL Podcast and commentary, despite disagreeing on a number of issues (and despite practicing in an unrelated field). I felt compelled to become a paid subscriber to your newsletter after seeing your truly impressive reaction to the panel discussion--both in the moment and since. Bravo.
That's very kind of you. I really appreciate it--and you!
Eye opening. Unsurprising. Disappointing.
Judges are people. Good and bad people are appointed to be judges. So what. The take away from this is three fold. First, going to the Federalist Society expecting ‘fair and balanced’ is like turning on Fox News and expecting the same. Second, life time appointments should stop and limits of some kind imposed. Third, even an unfairly ambushed Vladeck exhibits both a professionalism and delivers his responses with good humor and manners—naturally quick witted and generationally smart he proves more than a match for his main critic.
The issue is not at all whether judges are "[g]ood or bad people." The issue is that our Constitution was designed to protect us (the people) from judicial misconduct by specifically providing that federal judges may "hold their offices" only "during good behaviour." U.S. Const. Art. III. Consider also the text of judges' two oaths of office (5 U.S.C. 3331 and 28 U.S.C. 453). Judges never were (and never should be) expected to have the power to knowingly violate our Constitution.
I agree with WRD, I hope you will participate on panels of all types in the future. Your empirically based arguments are strong, and your voice needs to be heard, especially by "skeptical" audiences. (No doubt you realize your book The Shadow Docket has already rattled a few cages.)
Judge Jones, in contrast, did no favors to herself or her "arguments" -- merely serving, I think, to underline your points. You stayed cool under fire. Bravo!
With respect I dissent. Indeed, Professor Vladeck's solution--to remain engaged with student programs and to avoid Conferences of the sort attended by Judge Jones for now is generous in that is conveys a conclusion that the views of some members of the Federalist Society deserve consideration. It is also courageous in the sense that the "concern" about provoking violence against judges seems to apply only to what Judge Jones regards as left wing criticism; the fact that there are a number of Judges in other circuits who are under full time security protection for having reached decisions that do not accord with the views of the Society members and have been criticized in the Conferences and public sessions of the Society seems to have escaped Judge Jones notice.
Wow-just wow as one commentator below stated. That there was a "file" prepared in advance (!) on your public expressions and writings (I literally gasped) by one of the panelists (see at 1:17 appx) truly shocked me-especially prepared by a panelist who had expressed a deep reverance for the First Amendment (when citing the Alabama case) only moments prior to this verbal attack. There is so much to say on all this-but now I am loathe to expound more-lest I be risk being "confronted" with my public statements in some kind of public forum in the future (!). We all have a professional duty of responsibility to conduct ourselves in public with discernment and ethical standards when critiquing our legal profession in general, but this whole scenario gives the appearance that you were indeed "hand-picked" and that this was a set-up from the git-go as we say out here in the west.
Judge Jones provided a textbook example of how judges violate our Constitution by attacking critics instead of addressing the merits of criticism of judicial conduct. This is not even a novel violation of our Constitution and the duties of all public servants. More than 60 years ago, SCOTUS famously and repeatedly emphasized the unconstitutionality of public servants attacking the public they purportedly serve for mere criticism of public servants' public service.
Our “speech on public issues occupies” the “highest rung of the hierarchy of First Amendment values” and is “entitled to special protection.” Connick v. Myers, 461 U.S. 138, 145 (1983); Snyder v. Phelps, 562 U.S. 443, 452 (2011). See also Connick at 145 quoting Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964):
The controlling principle under our Constitution is that our “speech concerning public affairs” is … [a sovereign power, i.e.,] the essence of self-government. The First and Fourteenth Amendments” [ensure] “that debate on public issues [may] be uninhibited, robust, and wide-open, and [may even] include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
The “public interest in a free flow of information to the people concerning public officials, their servants” is “paramount,” so “anything which” even “might touch on an official’s fitness for office is relevant,” including judges’ “dishonesty, malfeasance, or improper motivation.” Garrison at 77.
Our Constitution secures our “privilege for criticism of official conduct.” New York Times Co. v. Sullivan, 376 U.S. 254, 282 (1964). Courts must “support” the “privilege for the citizen-critic of government” (id.) because such “privilege is required by the First and Fourteenth Amendments” (id. at 283). Judges cannot “give public servants an unjustified preference over the public they serve” by denying “critics of official conduct” the “immunity” that the sovereign people “granted” to “officials.” Id. at 282-283.
“(I)t is a prized American privilege to speak one’s mind” on “all public institutions,” including in “vigorous advocacy.” Id. at 269 quoting NAACP v. Button, 371 U.S. 415, 429 (1963) (“the First Amendment” necessarily “protects vigorous advocacy” in litigation) (collecting cases). No “regulatory measures” (court rule or ruling or other judicial statements or conduct), “no matter how sophisticated,” can “be employed in purpose or in effect to stifle, penalize, or curb” our “exercise of First Amendment rights.” Id. at 439. Accord Sullivan, 376 U.S. at 269 (dispensing with all “mere labels” abused as “formulae for the repression of expression”).
“Disheartening” indeed. Although, an understatement and I am sorry you experienced such an unprofessional situation.
I’m a new subscriber and feel fortunate to be here. I depend on your intellect and experience to inform me and am grateful for your work and energy! Thank you!
In 2016 I labeled what was happening, “The Republican-Federalist-Putin Coup Against America”, and faced much criticism using it while writing.
My research and observations led to its formation. Probably the #1 question was why the inclusion of, “Federalist”?
My label is a summary of course, each subject extensive but I think it fits many scenarios we continue to face.
Again, I’m here with much appreciation.
First of all, you have only bolstered my respect for you, Prof. Vladeck, for not only accepting the invitation to speak at the Federalist Society event, but for maintaining your composure while under attack (and without any meaningful 'moderation'). And to me, that sort of integrity is just as important an element of character that our nation should expect (demand!) from judges and justices who make up our judiciary. I believe that Judge Jones and Judge Ho demonstrated an unbefitting lack of temperament for a Federal Judge. These are individuals who are supposed to be held to the highest standards of character, impartiality and morality.
For the past several years, we've witnessed similarly questionable behavior from members of the Supreme Court involving ethical lapses, inappropriate displays of partisan affiliation, and refusals of recusal when clear conflicts of interest were demonstrated. On top of that, there has been persuasive evidence of the current Court using improper (and unjust) means to achieve decisions that clearly favored the conservative movement, including blatant misrepresentation of facts in a case (Kennedy v. Bremerton School District) and claimed injury that was demonstrated to be likely fabricated (303 Creative v. Elenis).
I am not a lawyer, but as an engaged citizen who does the work to remain informed about my government, I can tell you that even if it might be legally permissible, I think that truly good law must not come from abuses of the shadow (emergency) docket, or overturning precedent just because there is a change in the composition of the court. There must be pressures on these unelected, lifetime appointees to be true champions of justice, and I believe institutional reform, as Prof. Vladick so righteously argued, is not just essential but long-overdue.
I realized you’d be in the minority on that panel, but thought it is healthy to have different viewpoints represented. Surprised you were set up, but glad to know you held your own.
Keep on advocating for the proper way to view judicial independence. The country is better off as a result.
In my opinion, Edith Jones is a tired old crank whose expertise in the area of Constitutional Law and the proper role of the federal judiciary in our government is about as deep as a layer of graphene. If I were you, I’d wear her silly opprobrium as a gem in your crown. If Charles Alan Wright were still alive today, I’m confident that his position on these issues would be closer to yours than to hers.
"as deep as a layer of graphene" Love it! (i.e., stealing it!) 😆
Don’t steal it, use it freely. At first, I wanted to use the Planck length, it being so much smaller. But I liked the sound of “graphene” better.
Keep up the good fight—for non-partisan rationality, consistency, true justice and (small d)democracy
you’re a true patriot—and i don’t use that term lightly (or ever)
Regarding the Federalist Society - seems to me the invitation has to be extended in good faith, and I haven’t seen any evidence lately that FedSoc can meet this standard. Otherwise, as you say, your attendance is entirely for the purpose of stagecraft, while giving FedSoc the cover of claiming that they seek out diverse viewpoints. I’m quite sure there are better uses of your time, and audiences who will actually listen to and think about what you say. Even within the judiciary, I’m hopeful, at least, that there are many judges who are willing to meaningfully engage with the subject of judicial reform.
As for that event - to echo others, wow. This newsletter is consistently excellent, and when I do (rarely) get frustrated with elements of your arguments, it’s almost invariably because I think you’re going out of your way to be even-handed about the judiciary and to give particular judges/justices more benefit of the doubt than I believe they’re entitled to. So if appellate judges with lifetime appointments can’t handle your institutional critiques of the judiciary and proposals for reform - well, the phrase that comes to mind is thin-skinned partisan hacks. To your credit, you take your public-facing teaching role seriously, so I understand that you are likely unwilling to agree with my characterization!
I had to upgrade my subscription so I could comment here... Anyway, this article is terrifying given the response from the audience and the audacity (or maybe delusions of persecution of Judge Jones). But I also wanted to say, as a patent practitioner that I agree (and most patent practitioners do) that forum shopping in the patent space has undermined the public's confidence in patents. Also, patent owners' confidence. And investors' confidence. This isn't just about the propriety of forum shopping, it's about the economy in a very, very big way. On the other hand, what happened to Judge Newman was atrocious and also harms the patent system. Many patent practitioners (though, not all, by any stretch) view her as the last true patent jurist on the Federal Circuit. And the last true buffer between what the law says and what mischief the Supreme Court can manage to perform. Of course, given the overall state of our federal dysfunction, and increased groupthink within all 3 branches starting at the end of January, the patent system being undermined might be the least of our worries.
"...the inability of people who should know better to distinguish between principled criticisms of judicial behavior and personal attacks on judges is a serious problem for our discourse..." It's been my lifetime experience that when people turn to personal comments, as opposed to substantive comments, they've demonstrated that they have no substantive comments to make. They're responding in a completely defensive mode because they know, at some level or another, that your comments are correct. Pulling out the folder, and reading the tweets was merely performance and a display of arrogance. Ethical behavior is a top-down phenomenon in any organization. With Trump at the top of the government, this behavior is hardly surprising and will become more wide-spread and common. This is also the behavior of some of the conservative justices on the Supreme Court - hubris, arrogance and denial. Everyone needs to examine their beliefs to determine if they're the result of self-centeredness or logic. If you're driven by logic, you can change your view. I agree with your position of differentiating between participating in student panels because most students are still formulating their opinions and you can provide some thoughtful insights. I have to admit, after reading your essays for a while, I find that you seem to go out of your way to stay as impartial as possible; as diplomatic as possible. Considering that, Judge Jones' comments are very revealing, and petty. I also fully agree with your footnote about the role of a moderator and you were set-up.
President Whitmore? Maybe an alien invasion is what we need.
I was trying to come up with a fictional president with ambiguous partisan affiliation. :-)
Yeah, they never did say what his party was…
I am very reportedly distantly related to John Tyler-and even though Tyler was one of the worst presidents in America's History (but the new administration will make him look like a "piker" to be sure) so I vote that we make "him" a Whig.
Edith Jones has been scolding progs on behalf of trogs for 40 years. Take it as a badge of honor, as FDR did re his critics. https://en.wikipedia.org/wiki/1936_Madison_Square_Garden_speechcritics.. Keep shining a light on the shadow docket and forum shopping for single-judge divisions of district courts.
I hope you can also push back against Trump's ploy to evade Senate review of his cabinet nominees via recess appointments. The Recess Appointments clause (Art. II. Sec. 2, clse. 3) isn't expressly limited to emergencies. But he also seems bent on exercising his power under Art. II, Sec. 3 to adjourn Congress "to such Time as he shall think proper[.}" The latter authority is limited to "extraordinary occasions." Shouldn't the Recess Appointments clause be read in pari materia with the adjournment power, particularly given that Trump seems to see them as a package? And there's something incongruous about his declaration of "emergencies" months before he takes office and across the board, no?