Judge Scolded For Advocating Bush’s Defeat
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

A federal judicial panel has publicly scolded an appeals court judge for appearing to advocate the defeat of President Bush in comments the judge made last year likening Mr. Bush’s election in 2000 to the rise of Hitler and Mussolini.
In a 16-page opinion released on Friday, the Judicial Council of the 2nd Circuit said the remarks by Judge Guido Calabresi at a liberal lawyers’ conference at Washington in June amounted to a “clear and serious” violation of judicial ethics.
The panel, made up of federal judges from New York, Connecticut, and Vermont, noted that Judge Calabresi acknowledged in a letter of apology released about a week after the event that his comments were inappropriate because they could be viewed as urging Mr. Bush’s defeat.
At that time, the chief judge of the 2nd Circuit, John Walker Jr., admonished Judge Calabresi for his comments and warned other judges to refrain from partisan activity in the hard-fought 2004 election. Judge Calabresi, a former dean of Yale Law School, was appointed by President Clinton.
In the decision issued Friday, the judicial panel said the public admonishment by Judge Walker was the appropriate punishment. “The dissemination of Chief Judge Walker’s admonition – together with [Judge Calabresi’s] apology – and the Judicial Council’s concurrence with the admonition constitute both a sufficient sanction and corrective action,” the judicial body wrote.
Judge Calabresi made the controversial remarks during an election-related panel discussion staged by the American Constitution Society, a group that bills itself as an association of “progressive” judges, attorneys, and law students.
In the comments, which were first reported by The New York Sun, Judge Calabresi asserted that the election involved a “deeper structural issue … that somebody came to power as the result of the illegitimate acts of a legitimate institution.” The judge opined that the Supreme Court’s ruling resolving the 2000 election was similar to the installation of Mussolini and Hitler. “I’m not suggesting for a moment that Bush is Hitler,” the judge insisted.
The judicial panel took note that Judge Calabresi went on to compare Mr. Bush to Mussolini. “In this case, like Mussolini, he has exercised extraordinary power,” the judge said. “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.”
The judicial panel found the only portion of Judge Calabresi’s remarks that violated judicial ethics was his suggestion that the polity cleanse itself by voting Mr. Bush out. Judge Calabresi’s analogies involving Mr. Bush and the Axis leaders from World War II were ill-advised but not actionable, the judges found. “Although the comparison remarks were inflammatory to an ordinary person of reasonable sensibilities, it is not clear they constituted judicial misconduct,” the judges wrote.
Judge Calabresi did not return a call yesterday seeking comment on the panel’s decision. In his initial apology, the judge said the observations he shared with the hundreds of lawyers and law students attending the conference were “properly the stuff only of an academic seminar.” The judicial panel said Judge Calabresi subsequently conceded that the remarks would have been inappropriate even in an academic context.
The judges dismissed allegations that it was inappropriate for Judge Calabresi to speak to the American Constitution Society in any event because of the group’s political outlook.
They also dismissed a claim that the judge violated his ethical obligations when his wife protested a visit Mr. Bush made to Yale University in May 2004. An Associated Press account of the demonstration reported that the judge’s wife, Anne, said she was protesting on behalf of herself and her husband. The AP quoted her as saying she was “furious about the lies George Bush has told to us again and again.”
In a letter, Mrs. Calabresi told the panel she had “no recollection” of saying that she was protesting on behalf of her husband. Both the judge and his wife told the council that he had not authorized her to make any comments on his behalf.
The panel rejected the suggestion that Judge Calabresi be punished solely for suggesting that the Supreme Court’s decision in Bush v. Gore was wrong. “Reasonable people disagree over the soundness of the opinions in that case,” the judges on the judicial council wrote.
A total of five ethics complaints were filed with the judicial council following Judge Calabresi’s speech in June, the ruling said. The decision did not identify who brought the complaints. Last summer, 15 members of Congress asked Justice Breyer to investigate Judge Calabresi’s comments. Justice Breyer declined, saying he had no authority to do so.