No, claims against Judge Altman never needed a special committee

Steven Lubet recently argued it was a mistake for the chief judge of the U.S. 11th Circuit Court of Appeals to dismiss a complaint against Judge Roy Altman. But he got the whole thing very wrong.

Lubet argued that whether Altman’s media interviews were a “substantial” use of government resources may be “reasonably disputed.” Therefore, he reasoned, the matter have gone to a special committee under the Rules for Judicial-Conduct and Judicial-Disability Proceedings. For this, he relies on the commentary appended to those rules.

But the commentary is quite clear that the purpose of a special committee is to resolve disputed questions of fact. “If it is clear that the conduct or disability alleged, even if true, is not cognizable under these rules, the complaint should be dismissed,” it reads.

The commentary also notes that its standards are “used to decide motions for summary judgment,” and “genuine issues of material fact are not resolved at the summary judgment stage.”

The facts of this case are not in dispute. Altman acknowledges that he gave “podcast or TV interviews in [his] judicial chambers on thirteen separate days over several months.” Lubet does not identify any fact about these interviews that is contested. Instead, he asks whether “the question of substantiality” is “relative or absolute,” and says “an investigating committee might well conclude that the broadcasts were sufficiently regular and repeated to be objectively substantial in and of themselves. Or they might ask whether a judge should be making even one sales pitch........

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