Criticism of a judge for adhering to established rules is misplaced, argues Columbia Law Professor Joshua Mitts in a pointed rebuttal to Steven Lubet's recent commentary on the handling of a judicial conduct complaint against U.S. District Judge Roy Altman.
Lubet had contended that the chief judge of the 11th Circuit erred by dismissing the complaint without convening a special committee, suggesting that whether Altman's media interviews constituted a “substantial” use of government resources was a disputable point. However, Mitts clarifies that the Rules for Judicial-Conduct and Judicial-Disability Proceedings reserve special committees for resolving genuine factual disputes, not interpretive legal questions.
The commentary to the rules explicitly states that if the alleged conduct, even if true, is not cognizable under the rules, the complaint should be dismissed. It further draws an analogy to summary judgment standards, where material facts in dispute are not resolved. In this case, Altman admitted to conducting podcast and TV interviews in his chambers on thirteen separate days. Lubet does not challenge any specific fact about these interviews; instead, he raises questions about the “substantiality” of the use — a legal interpretation, not a factual one.
“Whether broadcasts that are 'sufficiently regular and repeated' count as 'substantial' under the rules is likewise a legal question,” Mitts writes. Similarly, the argument that a judge should not make “even one sales pitch from chambers” is a normative claim about what the rules should be, not a factual dispute.
The commentary also notes that dismissal following a limited inquiry is appropriate when a complaint refers to transcripts or witnesses that support the subject judge. Here, the chief judge could review the transcripts of Altman's media appearances, making a special committee unnecessary. Mitts points out that this is a direct example provided in the rules.
On the substantive law, Mitts highlights Advisory Opinion No. 79 from the Committee on Codes of Conduct, which explicitly permits judges to use judicial resources for compensated activities, provided the use is within reasonable limits and imposes no incremental cost on the government. Lubet fails to engage with this opinion, which directly undercuts his argument. There is no evidence that Altman used judicial personnel, exceeded reasonable limits, or interfered with his duties, and the internet connection used for interviews incurred no additional government expense.
Mitts further suggests a potential double standard, noting that Supreme Court justices have reaped millions from book sales, with Justice Sonia Sotomayor earning nearly $4 million and Justice Ketanji Brown Jackson receiving a $3 million advance. Justice Jackson even gave an interview from her chambers promoting her memoir. Judge Richard Posner, a prolific author, also appeared on television as “Judge Richard Posner.”
While acknowledging that many enjoy reading judges’ books, Mitts argues that if the goal is to eliminate judicial book income, one should start with the Supreme Court rather than a district judge in Florida. He concludes that Lubet should have recognized that the law supports Altman’s actions, and it is unfair to fault a judge for following the rules.
