I was reminded of this when Priorities & Frivolities pointed me to an astonishing statement by Ninth Circuit Judge Harry Pregerson in this morning's Los Angeles Times. Judge Pregerson is glum about the chances of his outlandish decision, taken with two others to cancel the California recall, being upheld by 11 of his colleagues. Pregerson points to the make-up of the panel, which has been described by others as moderate to conservative by Ninth Circuit standards. This is an admission by Pregerson, of course, that his and the others' first decision is so nakedly political that its reversal by a center-right court is assured. But it is the Judge's breach of an obvious requirement of ethics to remain silent that is newsworthy. That obligation is obvious and intuitive for anyone trained in the law, and he should have known better. In fact, I suspect he did know better, but couldn't be bothered by such considerations. His conscience must have made him do it.

The L.A. Times quotes him as saying, in an interview: "You know who's on the panel, right? Do you think it's going to have much of a chance of surviving? I wouldn't bet on it. . . . Judge Paez, Judge Thomas and I - we did the right thing," Pregerson said. "We're there to protect people's rights under the equal protection clause of the Constitution, no matter who's involved, and a lot of people don't like it. That's their problem, not mine." But Canon 3(A)(6) of the Code of Conduct for United States Judges says:

A judge should avoid public comment on the merits of a pending or impending action, requiring similar restraint by court personnel subject to the judge's direction and control. This proscription does not extend to public statements made in the course of the judge's official duties, to the explanation of court procedures, or to a scholarly presentation made for purposes of legal education.

Moreover, the official Commentary makes clear that this isn't limited to cases that are still before the judge, or for that matter to cases that involve the judge's own court: "The admonition against public comment about the merits of a pending or impending action continues until completion of the appellate process. If the public comment involves a case from the judge's own court, particular care should be taken that the comment does not denigrate public confidence in the integrity and impartiality of the judiciary in violation of Canon 2A." As Beldar points out, none of the exceptions in the Canon apply here; hard to see the Pregerson statement as anything other than a Code of Conduct violation.