Should A Federal Judge Be Remembered For "Champion[ing] the Underdog and the Uncelebrated"?

Do you remember Judge Robert Pratt from the Southern District of Ohio? Probably not. In December 2020, he made headlines by giving an interview with the Associated Press about President Trump’s pardons:

“It’s not surprising that a criminal like Trump pardons other criminals,” senior U.S. District Judge Robert Pratt of the Southern District of Iowa told The Associated Press in a brief phone interview Monday. In a bit of humor, he said: “But apparently to get a pardon, one has to be either a Republican, a convicted child murderer or a turkey.”

As I noted at the time, Pratt also made a gratuitous comment about the Emoluments Clauses–an issue that was then-pending before the Supreme Court:

He noted that the framers of the U.S. constitution sought to stop U.S. officials from “enriching themselves” while in office by banning gifts and payments from foreign powers. Ongoing lawsuits have accused Trump of illegally profiting off the presidency through his luxury Washington hotel. A White House spokesman declined comment on Pratt’s remarks.

I observed:

What is wrong with federal judges? Trump derangement syndrome has permeated Article III. Judge Pratt should follow the lead of Judge Adelman, and apologize before he is sanctioned.

I suppose the one plus side of this incident is that only one judge–so far–was willing to talk to the press. I hope there are not more. Judges should never, ever, talk to reporters.

Well, he would not apologize on his own. Chief Judge Lavenski Smith found there was “cognizable misconduct.” Pratt accepted that finding, and apologized for his “inappropriate partisan statements.”

I largely forgot about Judge Pratt, until I noticed this story about his obituary.

An obituary for Pratt, who was born May 3, 1947, described him as a man who “championed the underdog and the uncelebrated” throughout his career in public service.

Obituaries are usually written by family and friends who might not be tuned into the nuances of judicial ethics. Then again, Judge Pratt demonstrated through his own comments such a lack of discretion.

Should we celebrate judges for championing underdogs and uncelebrated? Is that their job? I am not a fan of the phrase “equal justice under law,” but it at least gets the point across that lady justice wears a blindfold. Everyone should get a fair shake before the court. Still, much of the caselaw from the Warren Court requires putting a thumb on the scale in favor of the “underdog.” The entire point of the Footnote 4 dictum from Carolene Products is that courts can reinforce the representation of groups that lack access to the political channels. Yet another reason to get rid of Footnote 4 altogether. I hope the Court does not reaffirm it any further in Hecox, the transgender cases.

I recently re-watched Justice Thurgood Marshall’s farewell press conference after he announced his retirement. I included this excerpt in my Civitas column on the SCOTUS NDA:

 In 1991, Justice Thurgood Marshall held an infamous press conference after he announced his retirement. At the time, the conservative Judge Clarence Thomas was viewed as a potential replacement for the liberal Marshall. A reporter asked Marshall if President George H.W. Bush had an obligation to name a minority justice. Marshall replied that “I don’t think that should be used as an excuse” for “picking the wrong negro.”

Well, that part was a bit cringey. But other parts were light-hearted, and even refrehsing. Another reporter asked if Marshall worried that his replacement would undermine the Justice’s civil rights legacy. Marshall’s answer (I am paraphrasing) was that when he became a federal judge, he was no longer an advocate, and no longer represented any clients or cause. He simply decided the cases. Therefore, Marshall said, it wasn’t his concern what would happen to his legacy. I was touched by Marshall’s comments, which I thought were exactly right. Justice Ginsburg took a very different approach with her final words. She said, “My most fervent wish is that I will not be replaced until a new president is installed.”

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