WHAT LAWYERS KNOW, AND WHAT THE PUBLIC SHOULD IGNORE

Just wondering: imagine if judges in interwar Italy were subject to something like the constraints of the current Code of Conduct, which limits judicial speech endorsing or opposing particular candidates. And then imagine that a judge said, "Mussolini's rise to power is a threat to the democratic system and must be opposed by citizens who care about constitutional constraints on politicians."

Should we (non-lawyers, that is) care if that judge could reasonably be described as violating a rule of judicial ethics? Seems to me that we should care under two conditions: 1) if we thought that the judge's response was a threat to the judiciary, and / or 2) if we thought his analysis was simply wrong. But if we thought that his analysis was basically persuasive, or even if we thought that the risks that he might be right outweigh the risks associated with option 1) (increased politicization of the judiciary), then we might not care so much about the Code of Conduct question.

My hypothetical is a bit silly, to be sure. Our responses to it are conditioned by our knowledge of what Italian fascism was. (And I do not mean to say that my hypothetical is close to what Judge Calabresi said recently; I wasn't there, and I'll wait for the transcript to make my judgment.) But I would be extraordinarily surprised if throughout American history there weren't judges who expressed worry - in public -- about the health of our constitutional order and linked that worry to processes connected with particular candidates. Seems to me that on balance it's a good thing for judges to do that when they feel so moved. Sometimes they might be right.

This is not to say that lawyers shouldn't have a debate about the Code of Conduct question. As Charles Fried argued in an interesting article on the "artificial reason of the law," the law can be viewed as a specialized discipline that connects broader philosophic views with certain facts on the ground. It shouldn't be surprising that the specialized discipline can sometimes seem at cross-purposes with the broader philosophic views, including questions concerning political theory (in this case, encompassing the intersection of politics and constitutionalism). The law is not a perfect mediator (good, then, that it is not the only mediator!). Here, the Code of Conduct question should only be interesting to lawyers and those who study them. The important questions lie elsewhere.