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An admonition from the chief judge of the 2nd U.S. Circuit Court of Appeals and a public apology by 2nd Circuit Judge Guido Calabresi were found to be an appropriate sanction for a speech given by Calabresi in which he made an “academic” analogy between Bush v. Gore and the use of legitimate institutions by fascist leaders to cement their rise to power. Acting on a report filed by a special committee charged with investigating complaints about Calabresi for his comments last year at an American Constitutional Society event, the circuit’s Judicial Council concluded that his apology — coupled with his public admonition by Chief Judge John M. Walker — was an appropriate sanction for violating the proscription in the Canons of Judicial Ethics against political behavior by judges. Complaints filed against the judge alleged that his speech advocated the defeat of President George W. Bush in November’s election; compared Bush to Adolph Hitler and Benito Mussolini; evidenced political “bigotry” or bias; and demonstrated incompetence by disagreeing with the U.S. Supreme Court’s decision in Bush v. Gore. Following the recusal of Judge Walker because of the admonition, 2nd Circuit Judge Dennis Jacobs became acting chief and chaired a committee that included 2nd Circuit Judge Joseph McLaughlin and Eastern District Judge Carol B. Amon. Michael Zachary, a supervisory staff attorney for the Court of Appeals, was named as counsel to the committee. Calabresi made his remarks, which he said were intended to address the “deeper structural issue that is at stake in this election,” from the floor at a June 19 panel discussion on the implications of the 2000 presidential election. Bush, he said, “came to power as a result of the illegitimate acts of a legitimate institution.” He continued, “That is what the Supreme Court did in Bush v. Gore. It put somebody in power. Now, he might have won anyway, he might not have, but what happened was that an illegitimate act by an institution that had the legitimate right to put somebody in power [sic]. The reason I emphasize that is because that is exactly what happened when Mussolini was put in by the king of Italy, that is, the king of Italy had the right to put Mussolini in though he had not won an election and make him prime minister. That is what happened when Hindenburg put Hitler in. “I’m not suggesting for a moment that Bush is Hitler. I want to be clear on that, but it is a situation which is extremely unusual. When somebody has come in that way they sometimes have tried not to exercise much power. In this case, like Mussolini, he has exercised extraordinary power. He has exercised power, claimed power for himself that has not occurred since Franklin Roosevelt, who after all was elected big and who did some of the same things with respect to assertions of power in time of crisis that this president is doing. “It seems to me that one of the things that is at stake is the assertion by the democracy that when that has happened it is important to put that person out, regardless of anything else, as a statement that the democracy reasserts its power over somebody who has come in and then has used the office to�build himself up. “That is what happened after 1876 when Hayes could not even run again. That is not what happened in Italy because, in fact, the person who was put in there was able to say ‘I have done all sorts of things and therefore deserve to win the next election.’ That’s got nothing to do with the politics of it. It’s got to do with the structural reassertion of democracy.” One week later, the circuit released a letter from Calabresi to Walker in which he expressed his “profound regret” for his comments. Calabresi said he understood how his remarks “too easily” could be interpreted as taking a partisan position and that he strongly deplored the “politicization of the judiciary.” Calabresi said he was merely trying to make “a rather complicated academic argument about the nature of reelections after highly contested original elections.” Walker responded with a memo of his own saying that, while the remarks were meant to make “an academic point with various historical analogies,” the issue was whether Calabresi could have been understood as making partisan comments, which are violations of the conduct code. After reviewing the committee’s report on the complaints, docketed under In re Charges of Judicial Misconduct, 04-8547, the council found Calabresi had violated only Canon 7, which instructs that judges should “refrain from political activity” and “should not�publicly endorse or oppose a candidate for public office.” Certain factors, the council said, militated in favor of sanctions — that it was a “clear and serious” violation of Canon 7; the remarks were made before a large public audience; and were widely reported by the media. “On the other hand,” the council said, Calabresi “conceded his remarks could reasonably be understood as violating Canon 7;” he said the remarks were not planned; and he had not intended to “veer” into remarks that could be construed as partisan advocacy. Moreover, the council said, the judge apologized, promised there would be no recurrence, and there was widespread coverage of both the apology and Walker’s admonition. JUDICIAL COUNCIL The Judicial Council is the regional governing body of the circuit. It consists of Walker, six other judges on the 2nd Circuit, and the chief judges of the circuit’s six district courts. Probing allegations of judicial misconduct are one of its responsibilities. The council had several options available to it, including censuring or reprimanding Calabresi by means of either a public or private announcement. It said there was “little in the way of published case law or other guidance concerning when censure, reprimand, or other sanction is warranted. However, in cases where censure, reprimand, or suspension was ordered, the behavior at issue was, in general, appreciably more egregious than anything alleged in the current five complaints.” The council rejected claims that Calabresi was not competent to serve because of his criticism of Bush v. Gore, of which the council said, “As shown by the closely divided vote in the Bush v. Gore decision itself, and the numerous analyses of that decision, reasonable people disagree over the soundness of the opinions in that case.” The council dismissed the complaints “in all other respects.”

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