Here's the newsletter, which you should subscribe to. And his discussion about Judge Altman:
Judge of the Week: Judge Roy Altman.
Pro-Palestine or even pro-Hamas law students aren’t the only ones getting into controversies over opining on the Israel-Hamas conflict. It’s happening to federal judges too—specifically, Judge Roy Altman (S.D. Fla.).
On Thursday, Judge Altman published an opinion piece for the National Review, The Israelis Slaughtered by Hamas Were Not ‘Settlers.’ Responding to Yale professor Zareena Grewal—who defended Hamas’s October 7 attack on Israel by asserting that the victims were “settlers, not civilians,” and deserved what they got—Judge Altman employed historical and legal analysis to argue that “under international law, they had just as much right to be where they were as an American does in New York City.”
Given how passionate people can get about the Israel-Palestine conflict, it should come as no surprise that Judge Altman received flak for his piece. After prominent Florida litigator David Oscar Markus took to his SDFLA Blog, the outlet of record for the Southern District of Florida, to praise the judge, anonymous commenters argued that it was inappropriate, perhaps even unethical, for Judge Altman to opine on a controversial issue in this way. The next day, also at the SDFLA Blog, Judge Raag Singhal defended Judge Altman, arguing that he had the right to speak out and praising him as “an exceptional judge, colleague, and friend.”
After reviewing the potentially relevant provisions, I don’t believe Judge Altman violated the Code of Conduct for U.S. Judges. Canon 4, which governs so-called “Extrajudicial Activities,” provides that “[a] judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice”—which would include the application of international law to the Israel-Hamas conflict. Nor did his commentary violate Canon 5, “A Judge Should Refrain from Political Activity,” which focuses on running for political office, endorsing candidates, and political fundraising.
That said, was it imprudent for Judge Altman to have weighed in on such a hot-button issue? The case for that is stronger—and my husband/editor Zach thinks that writing this National Review piece was unwise. I don’t know if I’d go that far, but I do believe Altman should recuse in future cases where his NR essay might cause his impartiality to be reasonably questioned—for example, as posited by one commenter, a case involving a local professor fired for antisemitic or pro-Hamas remarks (even if recusal might not be strictly required, as Judge Singhal argued in his SDFLA Blog post).
Even before this latest controversy, some South Florida lawyers have wondered whether Altman, although highly respected as a jurist, might be more suited to politics than the monastic life of the federal bench. He’s gregarious, well-connected, and well-credentialed, with degrees from Columbia, where he was a star on both the football and baseball teams, and Yale Law. Rumor has it that Senator Marco Rubio (R-Fla.) pushed Altman as a judicial nominee to prevent him from becoming a political rival. So don’t be shocked if, at some point in the next few years, Judge Altman leaves the bench to plunge into politics.
As one judge enters hot water, two others are exiting it. In a two-page, unsigned order, the Second Circuit Judicial Council declined to reconsider its earlier order clearing Chief Judge William Pryor (11th Cir.) and Judge Corey Maze (N.D. Ala.) of misconduct in connection with their hiring of controversial clerk Crystal Clanton. As you might recall, Clanton was accused of making racist statements in a pre-law-school job—and defended against the racism charges by none other than Justice Clarence Thomas. Based on my latest SCOTUS clerk hiring report, Justice Thomas still has one open spot for October Term 2025; don’t be shocked if it gets filled by Crystal Clanton. (If you have any intel on this, please drop me a line.)
In nominations news, the Biden Administration named its forty-first round of judicial nominees: Magistrate Judges Jacquelyn Austin (D.S.C.), Jacqueline Becerra (S.D. Fla.), Melissa Damian (S.D. Fla.), and Julie Sneed (M.D. Fla.), and former federal prosecutor David Leibowitz (S.D. Fla.), now an in-house lawyer. I’m struck by how common it is these days to pick district-court nominees from the ranks of magistrate judges. This strategy makes sense, since magistrate judges tend to be highly competent, not too political, and relatively easy to confirm—helpful in states like South Carolina and Florida that have two Republican senators. But I also think it reflects the reality that serving as a federal trial judge isn’t as attractive as it once was for high-powered practitioners; given the growing gap between law firm and judicial pay, they give up a lot more financially compared to sitting magistrate judges.
2 comments:
Thoughtful comments, as usual, by David Lat. That said, I'm not persuaded that Judge Altman would or should recuse himself if he were to be assigned the hypothetical case of a professor suing her university for an unlawful firing for pro-Hamas remarks (to be fair, even Lat acknowledges that recusal wouldn't be technically required). Nowhere in Judge Altman's opinion piece does he suggest that a professor should be fired for unpopular or even seemingly hateful speech; he suggests, instead, that Yale might want to reconsider employing professors who, in his view, are ignorant about the law, the facts, and history -- a different question altogether. And when it comes to recusal, judges aren't supposed to just step aside based on speculation that the judge might be biased. It has long been established, rather, that judges have just as much an obligation not to recuse themselves when there is no reason to do so as they do when there is such a reason.
Doesn’t bother me one bit the Judge wants to write important op-eds. But my client and I are waiting on orders that have been pending for a while. Rather see some of those get issued.
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