PrestoPundit.com

Eugene Volokh thinks so too:

Seeming violation of the Code of Conduct for United States Judges: How Appealing and Beldar point out that Judge Harry Pregerson -- one of the judges on the original California recall decision panel -- seems to have violated the Code of Conduct for United States Judges by his comments about the case. The L.A. Times quotes him as saying, in an interview: "You know who's on the panel, right? Do you think it's going to have much of a chance of surviving? I wouldn't bet on it. . . . Judge Paez, Judge Thomas and I — we did the right thing," Pregerson said. "We're there to protect people's rights under the equal protection clause of the Constitution, no matter who's involved, and a lot of people don't like it. That's their problem, not mine." But Canon 3(A)(6) of the Code of Conduct for United States Judges says:

"A judge should avoid public comment on the merits of a pending or impending action, requiring similar restraint by court personnel subject to the judge's direction and control. This proscription does not extend to public statements made in the course of the judge's official duties, to the explanation of court procedures, or to a scholarly presentation made for purposes of legal education."

Moreover, the official Commentary makes clear that this isn't limited to cases that are still before the judge, or for that matter to cases that involve the judge's own court: "The admonition against public comment about the merits of a pending or impending action continues until completion of the appellate process. If the public comment involves a case from the judge's own court, particular care should be taken that the comment does not denigrate public confidence in the integrity and impartiality of the judiciary in violation of Canon 2A." As Beldar points out, none of the exceptions in the Canon apply here; hard to see the Pregerson statement as anything other than a Code of Conduct violation.

I'm not sure how important this provision (in its current breadth) is to the sound administration of justice. Moreover, Pregerson's particular statement does not seem to be particularly harmful on its own: It doesn't tell the public anything about Pregerson's likely future decisions about the case beyond what the original opinion itself said, and while it suggests that the makeup of the en banc court may affect the outcome of the case, that's hardly a secret. In fact, the statement's assertion of judicial independence might actually be helpful to the public discussion.

But whatever I think, and whatever Judge Pregerson thinks, about whether the statement is harmful, it is pretty clearly prohibited. Judges should follow the rules, and the rule here seems pretty dispositive.