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Benchslap Of The Day: Federal Judge Tells State Judge To Shut His Mouth

A federal judge takes a state court judge to task for his extra-judicial writing.

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Or at least his laptop. After a conservative state court judge in Kentucky wrote an op-ed for the local paper arguing that the Supreme Court’s recent rulings on gay marriage didn’t affect the definition of marriage under Kentucky law, a retired federal judge called him on the carpet.

Benchslappery ensued. Let’s take a look….

First, let’s meet the players, as described to us by our Kentucky tipster. The conservative judge who wrote the initial op-ed, Judge Tim Philpot, “is on the Family Court bench. In my experience before him, which is thankfully limited, he comes across as wearing his biblical beliefs on his sleeve.” Judge Jennifer Coffman “is a recently retired U.S. District judge, with a good reputation locally.” She was also Kentucky’s first female federal judge.

In late July, Judge Philpot wrote an op-ed for the Lexington Herald-Leader entitled “Rulings do not change Ky. law on gay marriage.” Summarizing Hollingsworth v. Perry, he wrote that “[s]ame-sex marriage was legalized by a technicality in California.” Regarding United States v. Windsor, he said that the decision “made it clear that states like Kentucky still have the right to decide what marriage means.”

It’s not ordinary for judges to write op-ed pieces about divisive issues that might come before them, but Judge Philpot is no ordinary judge. He’s a former Republican state senator who has gotten into hot water before for mixing law and politics. He is a “staunchly conservative” judge, in the words of Lexington-Herald columnist Merlene Davis, who believes that he needs to return to his earlier right-wing radicalism and be more outspoken. As he wrote in an Easter letter for his friends, “No one calls me ‘crazy’ anymore. I have never been arrested. I am now a respected member of the community.”

How much Judge Philpot is respected may vary from person to person. Here is how Judge Coffman begins her op-ed criticizing Judge Philpot:

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The iconic symbol of justice, a blindfolded woman holding a sword and balance scales, represents the unbiased judge, blind to race, gender, sexual orientation, handicap, age, religion, wealth or any other distinguishing characteristic. Blindness is not Lady Justice’s only attribute; she is also silent.

Abandoning both blindness and silence, Fayette Circuit Judge Tim Philpot recently commented on the effect of two recent Supreme Court same-sex marriage cases. Judges are umpires whose ball-and-strike role lies within the context of actual disputes, not in newspapers. By opining on cases which aren’t in his court, Philpot took several risks, not the least of which is that he could be wrong. He concluded that the rulings do not change Kentucky law on gay marriage, but judges who actually consider and resolve the issue might disagree.

After chastising Judge Philpot for his dismissal of standing doctrine as “boring and technical” and for his “ridicul[ing]” judicial review, Judge Coffman raises an ethical issue:

[T]he possibility that a case involving these issues could arise in Philpot’s court underscores the primary error of his column: he has undermined his own judicial integrity. If squarely presented with the issue of the DOMA ruling’s effect in Kentucky, he might have to disqualify himself from the case because he has stated his opinion on that topic.

If the idea of asking Judge Philpot to recuse himself in a case involving the effect of DOMA in Kentucky never occurred to litigants, now it has. How do you like them peanuts?

Here is the benchslapping conclusion to Coffman’s column:

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The legality of gay marriage is the proper province of the state legislatures and courts. The DOMA ruling’s effect in Kentucky rests with the courts which consider the matter; indeed, the first test case has been filed in U.S. District Court in Louisville. In the absence of a pertinent case arising in his own court, in which he could act as a judge empowered to resolve the issues, Philpot should have left the topic to those entities as well.

Nice. There are a few things I enjoy more than a federal judicial diva benchslapping an icky state court judge. (If you want to be technical, refer to Coffman as a former judicial diva; she retired from the bench in January 2013, which may explain why she has the time and the freedom to write op-eds herself.)

In fairness to Judge Philpot, however, I don’t think his op-ed was that problematic. You can read it here, and you can read Judge Coffman’s op-ed here. Reading Judge Philpot’s piece closely, it seems that all he was trying to say is that Kentucky law remains unchanged as of now, i.e., that the SCOTUS rulings by themselves did not immediately overturn any provision of Kentucky law. To quote the last paragraph of his op-ed, “Kentucky’s constitution defines marriage as one man and one woman. Simple and traditional. Kentucky’s definition of marriage stands — for now.”

But let’s not let fair-mindedness get in the way of a good judicial catfight. If you hear of any good benchslaps, whether judge-on-judge or judge-on-counsel, you know where to reach us. Meow!

There’s a reason justice is blind, silent [Lexington Herald-Leader]
Rulings do not change Ky. law on gay marriage [Lexington Herald-Leader]
Lawyers had charged bias in case where attorney donated to judge [Associated Press]
Merlene Davis: Tim Philpot and I are alike in many ways [Lexington Herald-Leader]
U.S. District Judge Jennifer Coffman to retire from the bench [Lexington Herald-Leader]

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