Did This Judge’s Tweeting Constitute Reversible Error?

There are any number of things a trial judge can do that are ill-advised, unwise, or just plain stupid. Not all of them will constitute reversible error.

Back in November 2015, I wrote about an interesting Ninth Circuit appeal in which the appellants sought to make an issue of some tweeting allegedly done by Judge William B. Shubb (E.D. Cal.). I found some of Judge Shubb’s tweets to be troubling, and so did Above the Law readers. In our online poll, 84 percent of you voted the tweets in question to be improper.

Now the Ninth Circuit has spoken, and while it didn’t exactly bless the tweets, it did not find reversible error. From the Sacramento Bee (via How Appealing):

[Appellant Sierra Pacific] raised questions about a tweet that Judge Shubb allegedly sent out hours after his decision in the case linking to a news story. The Twitter account, which does not include the judge’s name, tweeted out the news link at 9:51 p.m. the night of the judge’s order, the company argued, showing that Shubb had revealed “a willingness to step out of the role of a neutral.”

The 9th Circuit panel didn’t buy that argument, writing that “the allegations do not warrant retroactive recusal even if the judge is the owner of the account.”

The Twitter account, @Nostalgist1, listed 335 tweets as of Thursday, with 36 followers. The account’s tweets and profile information were set to “protected” and viewable only to confirmed followers.

As you can see if you look at the opinion of Chief Judge Sidney Thomas (joined by Judges Mary Murguia and Jon P. McCalla), the panel agreed with much of the government’s defense of the tweeting. The Ninth Circuit didn’t get into whether the tweets could be the subject of judicial notice (the government’s first argument), but instead concluded that the tweets were insufficient to create an appearance of bias requiring recusal. (Note that, because Sierra Pacific didn’t raise the issue below, the panel reviewed just for plain error — a good example of former Ninth Circuit clerk Mark Herrmann’s point that the standard of review can decide cases.)

But just because you can tweet something doesn’t mean that you should. Instead, exercise good judgment and, on occasion, self-censor. Covfefe?

“Timber giant loses in court again” [How Appealing]
United States v. Sierra Pacific Industries, Inc. [U.S. Court of Appeals for the Ninth Circuit]

Earlier:

• A Federal Judge And His Twitter Account: A Cautionary Tale
• An Update On The Federal Judge And ‘His’ Twitter Account

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David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at [email protected].