On May 24, 2024, while Supreme Court Justice Jackson was dreaming of playing “Medea,” The New York Times published an op-ed entitled, “A Federal Judge Wonders: How Could Alito Have Been So Foolish?” by Senior Judge Michael A. Ponsor of the United States District Court for the District of Massachusetts.  Judge Ponsor addressed the flying of an upside-down American flag and the “Appeal to Heaven” flags outside homes owned by Supreme Court Justice Samuel Alito, a controversy covered thoroughly on Ethics Alarms.

The ethics verdict here was that the controversy was contrived, and that the attack on Alito was politically motivated, biased, and wrong. Judge Ponsor, however, opined that “any judge with reasonable ethical instincts would have” recognized that the flag displays were improper because they could be perceived as “a banner of allegiance on partisan issues that are or could be before the court.”

Let me inject here, “Sure, by an idiot!” “The appearance of impropriety is a reason-based standard. “Hey, this SCOTUS judge’s wife flew the same flag that began the HBO John Adams series: that must mean that her husband is in the bag for President Trump!” is not a reasonable perception.

Alito’s explanation that the flags were flown by his flag-crazy wife without his participation or approval didn’t assuage Judge Ponsor’s outrage. He stated in the Times that if his wife had publicly expressed her views on a fundamental issue in one of his cases, he would have been required to recuse himself from the case based on the appearance of partiality. He’s wrong about that, but if Ponsor wanted to recuse himself, that his choice. His hypothetical was, I think pretty obviously, a shot at Justice Thomas, whose wife is a prominent conservative activist. Ponsor is asserting that being married to a Supreme Court Justice removes the right of free speech from the spouse because he or she can’t opine publicly on anything without the position being attributed to the Justice. That’s both ethical and logical nonsense.

The column closed by stating that”basic ethical behavior should not rely on laws or regulations. It should be folded into a judge’s DNA.” That didn’t happen here.” Now that I agree with, though RNA should have been the term used in his metaphor.

A few days later Mike Davis, an advocate for more conservative courts, filed an ethics complaint against Ponsor under the Judicial Conduct and Disability Act, 28 U.S.C. §§ 351-364,” which prohibits federal judges from engaging in conduct that is”prejudicial to the effective and expeditious administration of the business of the courts.” Chief Judge Albert Diaz of the federal appeals court in Richmond, a Clinton appointee, was assigned the job of evaluating the complaint, and ruled that it was Ponsor who had damaged the judiciary.

Diaz ruled that by commenting on controversial issues and criticizing Alito, Ponsor violated the code of conduct that applies to all federal judges. The ethical principles in the code cannot be enforced against Supreme Court justices, but that shouldn’t matter, because ethics “should be folded into their DNA.”

Ponsor’s column, Diaz ruled, had “detract[ed] from the dignity” of a judge’s office and harmed “public confidence in the integrity and impartiality of the judiciary.” Ponsor is also a Clinton appointee who sits in Springfield, Massachusetts. Was his column motivated by partisan and ideological bias? Your guess is as good as mine. It was an obvious ethical violation, however, and I would be happy to write a column for the Times titled, “A Legal Ethicist Wonders: How Could Judge Ponsor Have Been So Foolish?”

The column was a dangerous precedent and had to trigger judicial discipline or at very least an official rebuke. The justice system is already in trouble: Gallup’s survey published yesterday found that public confidence in America’s courts had fallen by 24 percentage points since 2020 to an all-time low of 35%. This decline is substantially the fault of the news media, which routinely issues simple-minded criticism of judicial rulings they don’t understand, but the high-profile politically motivated trials like those of Derek Chauvin, the j-6 rioters, Donald Trump and Kyle Rittenhouse presided over by biased or incompetent judges contributed as well. However, if every judge felt that it would be appropriate to take to Fox New, MSNBC or the Times to attack the opinions or trial management of other judges, the current trust problem would be even worse.

Ponsor avoided further sanction beyond the Diaz decision itself because he quickly acknowledged violating the rules, apologized and said he would seek ethics advice before doing any further outside writing. “With the benefit of an objective perspective, I realize now that my criticism of the ethical judgment of a Supreme Court Justice might have had the effect of undermining the public’s confidence in the integrity of the judicial system,” his letter said in part. Ponsor also wrote a 2023 opinion column titled “A Federal Judge Asks: Does the Supreme Court Realize How Bad It Smells?” that managed to fly under the metaphorical radar; I missed it. Sorry.

Naturally, the Democratic voices who have been attacking Alito and SCOTUS generally resorted to impugning Davis, who was 100% correct in his complaint. A spokesman for Sen. Dick Durbin (D-Ill.) said, “Justice Alito currently faces no consequences for his public commentary and actions that cast doubt on his impartiality, but the judge who raised legitimate concerns about these ethical lapses is disciplined in response to a complaint by a political activist with an axe to grind.” A perfect example of how politicians and their minions further confuse the public about judicial ethics: that’s an impressive amount of disinformation in a single short statement: 1) Alito’s flag-flying wife has no legitimate ethical implications for the Justice except to those wanting to neutralize him on the Court; 2) Ponsor would have been violating the ethics rules even if Alito had breached judicial ethics principles, 3) the identify of the complaint has no relevance to the validity of the complaint, and 4) the fact that the Supreme Court itself is not technically bound by the ethics rules governing other federal judges is a separate issue entirely that neither excuses Ponsor nor colors the complaint.

Strange that Durbin’s mouthpiece didn’t mention Justice Jackson’s emulation of “Waiting for Guffman”…

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Source: Wall Street Journal