Recently, Judge Ho of the Fifth Circuit issued a concurrence that cited my post, The Audition Trap. The allegations in this case were problematic. The defendant's counsel told the magistrate judge that he had connections to a Texas Senator and other members of government. The counsel warned that he was "consider[ing] asking my Texas friends to write to you and ask why I have to continue waiting" for the resolution of a motion. The magistrate judge, who was seeking a federal district court appointment, agreed to an ex parte hearing with the lawyer.
Judge Ho observed:
Any judge who abuses his office to promote his own interests—including the desire for future appointment—has violated the judicial oath and doesn't belong in his current post, let alone whatever new post he seeks. There are, to be sure, both honorable and dishonorable people on the bench—just as there are in every other segment of life. Just as there are no doubt those on the bench who have strong ambitions for future office, there are others who are happy to be public servants, but who would be just as happy earning their living by some other means. For the outside observer, however, it can be difficult to discern which is which. And therein lies the quandary for the dutiful judge. How should a good judge respond when it's suggested that his exercise of judicial authority might be tainted by his private, personal desire for elevation to another post? . . .
Professor Blackman's point is simple, but important. No one has the power to look into another man's heart and ascertain his actual motivations or ambitions. So the accusation of auditioning is indeed irrefutable. Certain actions may seem like auditioning to some, but to others, it's simply doing the job as the judge best sees fit. There's no solution. So the good judge simply accepts that criticism is a fact of life—and that unrebuttable charges come with the job. The First Amendment guarantees the right of every citizen to criticize public officials—whether the criticism is fair or unfair.
