September 13, 2017

A judge cannot wear a "Make America Great Again" hat — whether he means it jokingly or seriously and whether or not people misread his intentions.

The NYT reports:
[Justice Bernd Zabel of the Ontario Court of Justice] wore a “Make America Great Again” cap into court the morning after Donald J. Trump’s election victory last year....

The four-member [disciplinary] council... rejected Justice Zabel’s explanation that the campaign hat and comments he made about Mr. Trump in court were just jokes about an unexpected election result...

“What would a reasonable member of the public think upon seeing Justice Zabel enter the courtroom wearing Trump’s signature red ‘MAKE AMERICA GREAT AGAIN’ hat and state that he did so ‘in celebration of an historic event?’ ” the review body wrote. “In our view, and indeed as Justice Zabel himself now acknowledges, a reasonable member of the public would think that Justice Zabel was making a political statement and endorsing Donald Trump’s campaign.”
The judge will nevertheless remain on the bench, after a 30-day suspension without pay. (He's been on suspension with pay since late last year.)

I don't see how a judge could think it proper to appear in court wearing words expressing anything at all. But even if you restrict the offense to making political statements, to joke about supporting a political candidate is a political statement and ambiguous political statements are still political statements. The argument that everyone knows it's a joke is based on the premise that people would assume that the judge couldn't possibly be pro-Trump. That's a more disturbing message, a message that of course we all think alike and you're an outsider if you disagree.

61 comments:

I Have Misplaced My Pants said...

Pink hat judge in Austin?

rhhardin said...

The hat seems like a clear joke to me. A little levity.

His decisions are a the guide to how good a judge he is.

I Have Misplaced My Pants said...

Sorry no link 'cause on phone and nursing a toddler but her name is Sarah Eckhardt.

rhhardin said...

The joke's idea isn't that the judge doesn't or does support it but that it appears instantly as official, against the surprise of it.

rhhardin said...

There are no jokes in Canada. Humor is fairly right-wing.

Ralph L said...

You left "cap" out of your headline.

BarrySanders20 said...

Canadian attempt at humor results in 30 days without pay. Should have stuck with the old mouse in a beer bottle routine. Hosers, eh?

Ralph L said...

MAGA-->Blame Canada!

The Cracker Emcee Activist said...

You know, I know, everybody knows, that had Hillary won and it had been a "Stronger Together" hat not a thing would have been said. And that, my friends, is why I utterly despise the slimy statist hypocrites of the Left.

Gahrie said...

What's worse..wearing a MAGA hat or making the remarks RBG made?

Sebastian said...
This comment has been removed by the author.
Paco Wové said...

Sarah Eckhardt

Great pic at link. Seems like one of those relentlessly political types.

Ann Althouse said...

"You left "cap" out of your headline."

Thanks.

BTW, I say "hat." Can't remember the substance of the hats vs. cap discussion we had a while back, but in my American dialect, we don't say "cap."

LYNNDH said...

Yeah but if he wore a Hillary pin nothing would have happened.
Ann a Cap is a Hat but a Hat is not a Cap.

Sebastian said...

I don't see how a judge could think it proper to blithely overturn lawful executive orders, or profess Posnerian disregard for the law as written, or derive a right to SSM from "substantive due process" somewhere in the nineteenth-century Fourteenth Amendment. Seems a little more "disturbing" than wearing a hat, whatever the motive. Of course, we cynical conservatives aren't easily disturbed.

Maybe the Canadians would like to preserve their faith in judicial impartiality a bit longer. Here, judicial hat-wearing would simply be useful data to the public, just as the full TDS in the US MSM is usefully revealing.

Carol said...

Sounds like he has a sense of humor, anyway. Most libs were all solemn or emo the day after.

SeanF said...

LYNNDH: Ann a Cap is a Hat but a Hat is not a Cap.

Since we're being pedantic, that should say "...is not necessarily a cap."

Freder Frederson said...

It's a Canadian judge. Of course he isn't pro-Trump. The rest of the world is either horrified or laughing at us (except for maybe a few countries that have elected even worse people like Duterte) for electing Trump.

tcrosse said...

The rest of the world is either horrified or laughing at us (except for maybe a few countries that have elected even worse people like Duterte) for electing Trump.

This would have been the case no matter which of those two awful people had won the election.

George Vie said...

"Pink hat judge in Austin?”

In Texas, a county judge is the presiding executive at the county level, not a judicial officer. The county judge is a political elected office (although judicial branch judges in Texas also run for election and are slated with a party). A county judge in Travis County (county seat, Austin) assuming an overt political stance would not be that surprising.

Amadeus 48 said...

Forget it, Jake. It's Canada.

Our great neighbor to the north is part of the Anglosphere, with reservations. It let its French Canadian soldiers choose to remain in North America during WWII. (I guess Hitler wasn't really a threat unless he came over here, and Vichy France was not at war). It has some superb military units, but they'll serve where they please. And don't talk about the First Nations--it is all too horrible. And isn't Justin dreamy?

Canada is what the US will be like in about 15 years if the Dems make a comeback, eh?

Kevin said...

You know, I know, everybody knows, that had Hillary won and it had been a "Stronger Together" hat not a thing would have been said.

He would have been celebrating the election of the first woman president and anyone who made a negative remark would have been called sexist.

Because "girl power" is not political speech... Sure.

We need to realize that all speech is political. When the judge hands down a sentence, he is saying the state has a right to detain and punish its citizenry for specific crimes which the state defines and prosecutes. Or decides not to prosecute, which it has a right to do, because it is the state.

That alone is some of the most political speech ever uttered.

Etienne said...

It's been my experience, that wearing a hat inside a courtroom by the public is contempt of court, and examples are made, as the trial gets started.

Kevin said...

The rest of the world is either horrified or laughing at us (except for maybe a few countries that have elected even worse people like Duterte) for electing Trump.

To quote the great Han Solo: "Laugh it up, fuzzball."

The rest of the world is mostly a sewer or bankrupt. Perhaps foreigners should stop to consider how choices which seem strange to them might have allowed the US to avoid those fates thus far.

iowan2 said...

Symbolism over substance. Always and forever the lefts domain. SCOTUS is starting to overturn lower courts politically motivated decisions. The Presidents Travel restrictions that judges admitted would have been allowed, and only blocked because of politics. They suffer no consequences. I will never get over the judge in Wisconsin that attempted to stop a piece of legislation from being published , which would have made the legislation, a law, at which time her jurisdiction would have kicked in. But to interfere with legislation from the bench? Should have earned her disbarment. Judge Sumi, I think was her name.

Quaestor said...

The tradition of robes and wigs on barristers and judges was originally instituted in the 17th century as a means to visually equalize the lawyers in the eyes of the jury. In those days it was easy to tell the idle rich from the workaday blokes just by looking, so making the lawyers all wear the same hair and the same gown made sense. The good idea got diluted over time as most good ideas do by adding bits of detail to the outfit by which one could tell the more eminent legal eagle from the hoi polloi mouthpiece. Same with the judges. They all looked awesome and forbidding, but it was hard to tell one from the other what with the full-bottomed wig and the ermine everywhere. The point was dreadful but neutral. You'd think a Canadian judge might be more aware of the traditions than an American one since the wigs and gowns disappeared from our courts 200 years ago, but then justice has been rather accidental in Canada of late.

Greg said...

Lol at Frederson, when my fellow Canadians make fun of you Americans for Trump, I just say 'and our Prime Minister is?' Most STFU pretty quick.

Interesting - the verification picture included a Petro Canada gas station, I'm being tracked.

Quaestor said...

It's a Canadian judge. Of course he isn't pro-Trump...

It's a small world to a man with few friends.

Curious George said...

"Freder Frederson said...
It's a Canadian judge. Of course he isn't pro-Trump. The rest of the world is either horrified or laughing at us (except for maybe a few countries that have elected even worse people like Duterte) for electing Trump."

Thanks for that 'rest of the world" update.

Freder Frederson said...

Canada is what the US will be like in about 15 years if the Dems make a comeback, eh?

One can only hope.

Static Ping said...

I agree with the decision. Judges are supposed to be impartial and any political statements, even in jest, are inappropriate. This is especially true in a courtroom.

Of course, that is based off the old model of non-partisan judges. Many if not most judges these days are lawmakers without accountability. I know it is no better in Canada. In fact, it may be worse. To have the judge broadcast his or her biases is somewhat refreshing. It takes a strong person to admit that they refuse to do the job they have swore to do, that they don't think anyone will do anything about it, and you should plan appropriately. Of course, respect for the judiciary is completely predicated on being non-partisan and fair so admitting that they are political hacks may have long-term negative effects on the institution, but YOLO.

Dust Bunny Queen said...

Perhaps it is wrong for a judge to wear something that announces his/her biases. However, it is pretty useful to know where the judge already stands on some issues so you can pander to his/her vanity and biases.

Sal said...

The argument that everyone knows it's a joke is based on the premise that people would assume that the judge couldn't possibly be pro-Trump

Exactly like where I work. On campus, of course.

Freeman Hunt said...

I had assumed that one purpose of the robe was to cover anything distinguishing. If so, then of course no hats.

Freeman Hunt said...

I am, however, surprised that he was suspended. Seems like, "You can't wear the hat," would have sufficed.

Richard Dolan said...

So what aspect of Trump's agenda to 'make Amerioa great again' had enough impact in Canada that it amounted to a political statement of such significant relevance to those attending legal proceedings in a Canadian courtroom in Nov 2016 that it merited all of this?

Fernandinande said...

MCGASAIRP:

Make Canada Great As Soon As Is Reasonably Possible.

The Cracker Emcee Activist said...

"So what aspect of Trump's agenda to 'make Amerioa great again' had enough impact in Canada that it amounted to a political statement of such significant relevance to those attending legal proceedings in a Canadian courtroom in Nov 2016 that it merited all of this?"

Exposing their hypocrisy on immigration? I'm guessing that one of the things about Trump that makes foreigners uncomfortable is that his positions create discussion of subjects they'd rather not talk about. Hard to be a Moral Superpower when every time you open your mouth you invite a riposte exposing what a bunch of smug hypocrites you are.

tcrosse said...

At least when a Canadian says 'Not My President', they're right. He's not.

Sebastian said...

It makes perfect sense for a Canadian judge to wear a MAGA hat, since Trump may just try to MAGA by adopting the essentials of Canadian immigration law. Not counting on the GOP, of course, and Dems will obstruct, of course.

Ann Althouse said...

In 32+ years of teaching law school, I don't think I ever once mentioned supporting or opposing any political candidate -- not in a current election or in an earlier one. I don't think I even expressed my personal opinion on a political issue (as opposed to expressing an opinion on what I think is the best answer on a legal question that had a political impact, which is also something that I almost always avoided). But I don't think that's what most law professors do. It seemed to be basic ethics to me. You have students trapped in your class.

It's much more restricted for a judge, who has litigants trapped in his power and not just forced to listen to him but stuck having their freedom or economic condition subject to his decision making. I wouldn't want to be a judge precisely because I couldn't want that much restriction on my own expressive freedom, so it really bothers me when someone does take the position and then abuses it.

Chuck said...

I saw this story linked on the Drudge Report. I presume that that is where Althouse found it. And in the right-wing media, it was not immediately clear that the judge wore the hat while robed and in open court.

At first, I thought that the story was that the judge was being sanctioned for wearing a MAGA hat in his private life. Which really would have been a story. A bit more like the incendiary East Lansing Farmers Market story:

http://thefederalist.com/2017/06/19/city-east-lansing-bans-apple-farmer-market-faithful-catholic/

But no; this judge really did wear the hat while on the bench, and I agree with Althouse. Was it a joke? No doubt it was intended as such. Was it so impermissible from a judicial ethics standpoint that some punishment was mandated? Yes. Does this punishment seem to fit the offense? I think it does.

The interesting thing to me was Drudge linking the story. It was a dumbass move by the judge, and if the Trumpkins are going to somehow claim victim status over this, it really is weak.

Quaestor said...

One can only hope.

Right you are. We don't want no Canucks monopolizing our best cancer clinics.

Quaestor said...

...and if the Trumpkins are going to somehow claim victim status over this, it really is weak.

And Chuckie can't resist trivializing his own best comments.

rightguy2 said...

Better a MAGA hat than a pussy hat.

Chuck said...

Ann Althouse said...
In 32+ years of teaching law school, I don't think I ever once mentioned supporting or opposing any political candidate -- not in a current election or in an earlier one.

In three years of law school, I had exactly one professor who openly mentioned -- once -- his political orientation (liberal Democrat), and he did it in a way that was largely self-effacing. He would have happily engaged a conservative student like myself, and I am quite certain that he would have graded me fairly if I had countered with my own political orientation. In fact, I was graded fairly because the exams (and it was Con Law, btw) had no room for anything but cold legal analysis without political speechifying.

There is a problem in law schools, but not so much in any political indoctrination of students. Rather, it is in the establishment of tenured classes of insulated liberals who then have a platform for writing, speaking and letter-writing. Additionally, there is the matter of law school organization. For instance (not my law school) Wayne State University in Detroit's Damon Keith Center. Keith is an old lion of the civil rights era, and a Senior Status Judge on the 6th Circuit, currently. The Damon Keith Center is a large political action base for all sorts of liberal politics. Those kinds of things are found throughout legal academia. The Brennan Center in New York City is another one.

As Justice Scalia wrote in his Lawrence v Texas dissent:

Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653.


EDH said...

"So, should I assume a facial tattoo would be a problem?"

Ralph L said...

wearing a hat inside a courtroom by the public is contempt of court
By a man, you mean. Nearly all the female witnesses in "Perry Mason" wear hats in court.

Until last century, women were expected to wear hats in church.

Seeing Red said...

Judges rule to advance their politics now so what difference at this point does it make?

exhelodrvr1 said...

But Ginsburg can make negative statements about Trump?

Rance Fasoldt said...

A couple of notes about Trump: all future presidents will tweet, just like all presidents in the past, after the first president used the technology, used the phone, went on the radio, were televised, etc. One of my Twitter accounts records only Trumps tweets, most of which are informative and/or complimentary and of course, unreported in the press. Also, he doesn't put his feet on the Resolute desk or shuck his coat like Obama, get blowjobs from young interns (you know who), piss openly in the parking lot (LBJ) or hold cabinet conferences while taking a dump (LBJ, again), screw actresses in the White House (JFK). So we don't need to hear about "being Presidential" anymore. I'll take a patriotic fighter who gets things done anytime. Landslide in 2020, Dems might change by 2024, but I wouldn't bet on it.

tcrosse said...

There's hard feeling in Toronto that Trump won the Presidency, even though Hillary won all of Ontario's electoral votes.

Mary Beth said...

Since the purchase of the hat from the campaign website counted as a contribution, could you have one shipped to Canada? Was it a counterfeit hat? Both of those things seem problematic for a judge.

How fortunate for him and his jokstering that he just happened to have a MAGA hat lying around - I doubt they were selling them outside the courthouse.

Todd said...

he doesn't put his feet on the Resolute desk

This!

That he felt free to do that was a disgrace and the fact that he was not called out for it was a national disgrace.

Unknown said...

So how long was badger-Ginsburg suspended for?

Yancey Ward said...

If he had only rewritten the hat to say "Making America Stupid Again", he would have faced no penalty, and everyone knows it, don't we? Or he would have been fine if his hat had said "I'm With Her".

themightypuck said...

I joking gave Trump hats out for Christmas in 2015 because most of my family are died in the wool lefties. They ended up in the hands of my sister in law (who is Russian) and her friends. They loved them unironically. More evidence of Russian collusion.

Barry Jacobs said...

It seems to me that the message the judge sends by presuming that no-one could possibly believe he supports Trump is that he is a Canadian citizen and, last I checked, not permitted to vote in US elections.

John Lawton said...

I was going to say "Ann, nothing is more American than baseball, where the headgear is universally called a baseball cap, not a baseball hat! Then it occurred to me: Doesn't Ann also call baseball uniforms costumes?

Mark said...

Political jokes are not appropriate from the bench.

Bob said...

Judges often need to work to keep morale up in the court slog. They develop relationships with the people who operate in the background, keeping the endless stream of cases, filed months or years earlier, moving.

When you have this kind of boring, endless, monotonous job, a little humor goes a long way. Joking about America is de riguer in Canada, lighten up.