2004—A mere audience member at an American Constitution Society panel discussion on the forthcoming presidential election, Second Circuit judge Guido Calabresi can’t restrain himself. Calabresi begins his comments from the floor by acknowledging that he is “not allowed to talk politics,” but he quickly descends into an extraordinary diatribe: “What the Supreme Court did in Bush v. Gore” was “exactly what happened when Mussolini was put in by the King of Italy” and “what happened when Hindenburg put Hitler in.” Of course, Calabresi is “not suggesting for a moment that Bush is Hitler.” But, “like Mussolini, he has exercised extraordinary power.” And “when that has happened it is important to put that person out [of office].”
A week later, Calabresi will apologize that his comments could reasonably have been understood to be partisan. In April 2005, the Judicial Council of the Second Circuit will confirm that Calabresi violated the canon of judicial ethics that provides that a judge “should not … publicly endorse or oppose a candidate for public office.”