Is it in the nation’s best interests for the courts to chill the protected speech of law professors?

In a recent episode of the excellent National Security Law podcast, University of Texas law professors Steve Vladeck and Bobby Chesney ruminated about the D.C. Circuit’s August 9th decision requiring the recusal of Judge Scott Silliman of the U.S. Court of Military Commission Review (USCMCR) in a case involving the 9/11 defendant Khalid Shaikh Mohammad (KSM).

Importantly, the D.C. Circuit’s grant of the petition for a writ of mandamus relied mainly upon statements Scott made as a law professor in 2010, years before his appointment to the USCMCR – statements the court concluded reflected Scott’s belief in the guilt of KSM.  (KSM bragged about his involvement in 9/11 and other acts in a Combatant Status Review Tribunal hearing in 2007).

Among other things, Steve essentially reiterated on the podcast what he had said on an earlier post on Just Security. Steve’s opinion is that the court’s ruling was a “straight-up application of settled recusal doctrine” which struck him as a “no-brainer.”  I disagree, and I also believe that the court’s decision has the troubling potential to chill First Amendment speech generally, and academic discourse specifically.

Full disclosure: Scott is a colleague of mine here at Duke Law, my predecessor in my current post, and someone I’ve known and respected for some forty years.  All of that makes the very notion that he would violate his judicial oath and be anything but impartial and professional in his duties to be laughingly preposterous.

So how did the court decide the case in overturning Scott’s decision about his recusal?  I think Steve did a good job summing it up:

In a nutshell, the per curiam opinion holds that statements Judge Silliman made in a 2010 interview suggesting that the 9/11 defendants were indeed responsible for the attacks required his recusal under Rule 902(b)(3) of the Rules for Military Commissions, which provides that “[a] military judge shall . . . disqualify himself . . . [w]here the military judge . . . , except in the performance of duties as military judge in a previous trial of the same or a related case, has expressed an opinion concerning the guilt or innocence of the accused.”  (Emphasis added.)

Obviously, Scott serves as a civilian judge on the USCMCR, but Rule 25 of USCMR’s Rules of Practice states that “[f]or purposes of R.M.C. 902, the same disqualification standards which apply to military judges shall also apply to civilian judges appointed under 10 U.S.C. § 950f.”

The problem is that the prohibition only applies to opinions expressed by a military or civilian “judge,” not anything said by a law professor years before being sworn in as a judge.  The court’s opinion fails to even discuss the intended purpose of the rule as set out in DoJ’s letter to the court.  That letter points out:

The Secretary of Defense based R.M.C. 902(b)(3) on the identical Rule for Courts Martial (R.C.M.) 902(b)(3). The accompanying commentary explains that “[t]he purpose of this section is analogous to that of 28 U.S.C. § 455(b)(3).” Manual for Courts-Martial at A21-51 (2016). Section 455(b)(3) requires a judge to disqualify himself “[w]here he has served in governmental employment and in such capacity . . . expressed an opinion concerning the merits of the particular case in controversy.” Legislative history indicates that the purpose of Section 455(b)(3) is to cover situations where a judge, through his prior governmental participation in a case, obtained personal knowledge of the case and then expressed an opinion on the merits. H.R. Rep. No. 93-1453 (1974). (Emphasis added.)

In short, the rule upon which the court relied applied to opinions a judge might have expressed, but did not purport to apply to what a non-judge, law professor might have said.

The key intervening act that transforms someone who is just a part of the citizenry (to include academia) into a judge is the oath.  Unfortunately, the court does not even discuss the oath Scott took in September of 2012 that obliges him to “faithfully and impartially” perform his duties.

If the judicial oath is meaningless, what then do we make of the judges who ruled in this case?  Two of the three were Bill Clinton appointees.  Were they merely reflecting the ideology of the party (which has long been hostile to military commissions) of the man to whom they owe their jobs?  Can’t we (indeed, shouldn’t we) assume instead that the Court of Appeals judges adhered to their oaths and followed the law?

Furthermore, if there were a question of Scott’s bias or partiality with respect to the 9/11 cases – particularly given how entirely predictable it was at the time of his appointment that he would be ruling on them – isn’t that something for the Senate to determine?  (Scott was confirmed by voice vote on June 21, 2012.)  Is it even appropriate then for the judicial branch to be second-guessing what is really a fitness issue that the Constitution tasks to the legislative branch to address and resolve in the confirmation process?

Additionally, if Scott’s pre-appointment statements as a law professor are disqualifying, what then are we to make of the statements and actions of Supreme Court Justice Ruth Bader Ginsburg?  As I’ve argued elsewhere, her expressions of her sentiments both before and after Trump’s election would lead any reasonable person to conclude she has actual bias against him.  What makes all this especially egregious is that she did so not as a law professor, but as a sworn Supreme Court justice.  Will she recuse herself in cases involving his administration?  When Trump is a named defendant?

My bet is “no”, partly because of Ginsburg’s apparent inability to see herself as others would (that is, her lack of comprehension about how her “impartiality might reasonably be questioned”), and partly because the Court considers ethics rules applicable to all other judges, not binding on itself.  Still, if she refuses to recuse herself, should she be impeached or, perhaps, removed for failing to exhibit “good behavior” – a method that some have argued is an alternative to outright impeachment?  The point is this: is it equitable to disqualify a USCMCR judge for pre-appointment statements if the norm (as evidenced by inaction) is to excuse the statements (and actions) of a sitting Supreme Court justice?

But what I find especially troubling in Scott’s case is that this is another example of a court being indifferent to the chilling effect of its ruling on protected, First Amendment speech of persons who at the time they engaged in it were not government officials.  As I discussed not long ago with respect to the 4th Circuit’s decision in the travel ban case:

[The] majority of 4th Circuit judges rejected out of hand the Government’s argument that the court’s review of these campaign statements will “inevitably ‘chill political debate during campaigns.’”  Additionally, the majority opinion added, disturbingly, that to “the extent that [their interpretive] review [of Trump’s statements] chills campaign promises…[they] welcome the restraint.”

Is this really what we want judges to do?  However offensive the judges may think the campaign rhetoric was, in a democracy isn’t it the responsibility of the voters, not unelected judges, to make the value judgment?

A court’s disposition to chill protected free expression is troubling enough when applied to a candidate for public office, but may be even more of a concern when applied to a professor.  Indeed, isn’t it a core responsibility of universities to be marketplaces for ideas?  This was brought home when both Steve and Bobby observed during the podcast that given the Silliman decision, neither of them could ever serve on the USCMCR as they’ve both opined on a variety of issues related to Khalid Shaikh Mohammad as well as other military commission defendants, not to mention the commissions themselves.

Though they were speaking in jest, don’t their remarks actually represent what should be a bona fide concern?  If courts find disqualifying pre-confirmation statements about an event of such epic proportions as 9/11, who in the national security law community – and particularly among law professors – would be qualified?  Do we really want to leave these positons to those with little or no background in the major national security events since 9/11?

Put another way, is it really in the nation’s interests to disqualify, per se, all the Vladecks and Chesneys of the world, notwithstanding that they could be subject to a searching confirmation process as to their professionalism, and also be required to swear that they would try cases fairly and impartially?  Shouldn’t a form of the judicial “rule of necessity” apply where the nation needs to find the best qualified jurists for exceptionally notorious and unprecedented acts like 9/11?

The fact is that when one takes an oath as a government official (and especially, I would argue, as a jurist) one’s responsibilities change markedly from that of a law professor.  More than that, one’s opinion can change.  In this respect I’m reminded of the controversies surrounding Harold Koh when, as Legal Advisor to the State Department during the Obama administration, he took often controversial positions that many considered being at odds with views he espoused as a law professor.  As Koh himself admits, he was often accused of being a “hypocrite.”

At the time Jack Goldsmith expressed surprise at some of Koh’s opinions as a government official, but still said that he “certainly” did not “believe that Koh’s academic views should control his advice and judgment during his government service.”  Similarly, in an essay critical of Koh, Ben Wittes nevertheless conceded that “the role of the academic and the role of the government lawyer differ.”

A more full-throated defense of Koh came from Duke Law’s Walter Dellinger who, among many accomplishments in his government career, once led the Justice Department’s Office of Legal Counsel.  Dellinger insisted:

It’s wrong to expect an academic like Harold Koh to take the same positions in government that he would have taken as a law professor, because when you’re a government official in the executive branch, you are working within a context of a reasoned set of executive branch precedents and traditions.

To be sure, being a jurist is different from other government positions, but it remains true that once an individual takes an oath to be “impartial” and examines the facts in the way a jurist would, legal opinions can and do change.  Admittedly, it isn’t always easy to do so, especially in the most distasteful cases, but compartmentalizing one’s personal views is fundamental to judging.  As the Air Force Court of Military Review stated in the 1990 case of U.S. v. Stidman (29 M.J. 999, 1002):

[T]here are two kinds of courage involved in the profession of arms and the profession of law. On the one hand, many are called upon for physical courage. On the other hand, judges are called upon from time to time for moral courage — the courage to subordinate a personal philosophy of the law or private distaste…to decide an issue logically and dispassionately. (Emphasis added.)

Moreover, in the context of teaching law, is silence really an expression of impartiality?  In a 2005 article (“The Law Teacher as Peacemaker: National Security in the Classroom”), Professor Steven Dycus, one of the authors of one of the most widely-used texts in national security law, observed:

It would be naive to think that students do not know where their teacher stands on these matters, and it is silly, in my view, for us to try to conceal our feelings. I believe, however, that we must be just as careful here as in other courses not to impose our views on our students. Still, as one of my coauthors has pointed out, “‘neutrality’ is itself a bias and… ‘balance,’ when outrage is called for, carries its own distorted message.”‘ (Emphasis added.)

Do we really think there are authentically qualified persons ‘out there’ who have never commented on the guilt of KSM at one point or another – particularly after his own admissions?  Think about it: what kind of person active in the national security law space has never commented about the 9/11 conspirators at some point over the years?

Do we really want to chill the pre-appointment expression of law professors and others who might make ideal jurists?  Do we need to stop recording classes out of fear that a student may make a comment in an academic setting that could come back to haunt her or him years later in a completely different context?

More fundamentally, do we need to make accommodations for especially infamous cases that arise in the context of an ongoing armed conflict?  As the late Supreme Court Justice William Rehnquist put it:

In wartime, reason and history both suggest that this balance shifts to some degree in favor of order – in favor of the government’s ability to deal with conditions that threaten the national well-being. It simply cannot be said, therefore, that in every conflict between individual liberty and governmental authority the former should prevail.

Again, not only do I believe the D.C. Circuit’s opinion was legally wrong, it also sets a precedent that does not serve justice.  It is a facile and shallow analysis of an issue that has graver implications than the court seemed to have even recognized.  It is all well and good for judges to assess what other judges do as judges, but it is wrong for judges to attempt to chill the pre-appointment protected speech of law professors, particularly when doing so intrudes upon the confirmation role the Constitution allocates to the Senate, not the Judiciary,