The Lessons of Microsoft

To some, the Microsoft debacle teaches a simple lesson: Judges shouldn’t talk to reporters. Period.

That hard-line view is embraced by David Sentelle, one of the nation’s most prominent conservative jurists. Sentelle sits on the D.C. Circuit, the court that disqualified Jackson. A few months after joining the opinion removing Jackson, Sentelle wrote in The Federal Lawyer, “No judge in the United States should ever submit to an interview with the media about an ongoing adjudication, or even a recent one.”

Rotunda, the George Mason law professor, agrees. “The worst thing judges can do is talk off-the-record,” he says. “The next worst is to talk for attribution, but not in open court.

“If a judge wants to explain something, he can say it in court, and reporters can write it down,” Rotunda says.

The ethical rules that apply to state and federal judges allow for some room for public commentary about pending cases, but not a lot. The American Bar Association’s Model Code of Judicial Conduct, adopted in Washington, D.C., and every state but Montana, instructs judges to refrain from “any public comment that might reasonably be expected to interfere substantially with a fair trial or hearing” while a case is “pending or impending.” Montana’s Canon of Judicial Ethics contains a similar rule.

Likewise, federal judges are supposed to avoid comment on “the merits of any pending or impending action,” according to Canon 3A(6) of the Code of Conduct for United States Judges. The official commentary to the federal rule makes clear that the prohibition applies to all proceedings in any court, federal or state.

The rules don’t foreclose all extrajudicial commentary, however. The Model Code specifically allows judges to explain “for public information the procedures of the court.” As Pirraglia puts it, “Judges can provide a ‘scorecard’ of what’s coming up.”

Judges are also free to speak generally about the law in scholarly articles or speeches, and to conduct informational briefings for journalists covering a case, provided they don’t cross the line and disclose their views on the merits.

Hengstler, of the National Center for Courts and the Media, cites the Mike Tyson rape trial as a case in which a judge made herself available to reporters without getting into trouble. Judge Patricia Gifford of Marion County Superior Court in Indianapolis, Ind., met daily with reporters in informal question-and-answer sessions to help them with procedural and technical points.

A judge is also free to comment on a case after it is over — but, as the Microsoft case illustrates, the judge better be sure that the case is gone for good. Even though Jackson’s comments were embargoed until after he ruled, the complex case was still very much alive on appeal, and it would have returned to his courtroom on remand from the appeals court if he had not been disqualified.

The counter-example is Robert Alsdorf, a judge on the King County Superior Court in Seattle, Wash. Alsdorf is widely praised for having given a thoughtful television interview to explain his controversial decision to invalidate a state ballot initiative on car taxes. Notably, he did not make his comments until after the dispute was resolved.

The content of the statement also matters, of course. Alsdorf’s measured remarks “enhanced public respect for the judiciary,” Hengstler says. By contrast, Jackson’s personal attacks on Bill Gates undermined the appearance of impartiality, the appeals court found.