Public critique isn’t something every official can weather. Yet if the pressure becomes overwhelming, stepping away is always an option.
From Judge James Ho’s concurrence Friday in Pittsburgh Logistics Sys., Inc. v. Glen Rose Transp. Mgmt.:
I write separately to address Plaintiff’s understandable objections to the magistrate judge’s ex parte meeting with Defendant. After all, ex parte meetings are “strongly disfavored” and “often reversible error,” as our court rightly observes today.
I understand why the magistrate judge felt compelled to engage in an ex parte dialogue, after he received a series of unusual emails from Defendant’s corporate representative. It’s hardly pleasant to face criticism about one’s life’s work.
But “[h]olding office in America is not for the faint of heart.” “With leadership comes criticism—whether from citizens of public spirit or personal malice.”
[I.] The defendant’s corporate representative sent multiple ex parte emails to the magistrate judge. The messages conveyed frustration with what was perceived as excessive and unnecessary delays in deciding the case.
One of those messages hinted that “I have many friends who are … Texas congressmen, US representatives, and one close U.S. Senator,” and that the corporate representative was “consider[ing] asking my Texas friends to write to you and ask why I have to continue waiting.”
The email circulated at a time when it was publicly known and reported by the media that the judge was being debated and promoted within certain circles for appointment to the district court.
Thus the message—whether intended to be read that way or not—came across as a rebuke of the judge’s honor. It effectively charged—fair or unfair—that the judge might be willing to use his rulings to advance his own career prospects.
In response, the magistrate judge conducted an ex parte meeting with Defendant’s corporate representative.
[II.] Any judge who misuses the office to promote personal interests—including the pursuit of future appointments—has breached the judicial oath and does not belong in the position he currently holds, let alone any new post he seeks.
Undoubtedly, there are both honorable and dishonorable individuals on the bench—just as there are in every other realm of life. Some harbor strong ambitions for higher office, while others are content to serve the public and would be equally content earning their living through alternate means.
To an outside observer, distinguishing who is which can be challenging.
And this creates the dilemma for a conscientious judge. How should a jurist respond when it is suggested that his exercise of judicial authority might be tainted by a private aspiration for advancement?
One respected scholar has framed this dilemma as the “audition trap.” Josh Blackman, The Audition Trap, Reason.com, Mar. 7, 2025. According to Professor Blackman, “at the core, this is a charge of bad faith: that we write what we write not because we believe it yields the correct legal outcome, but because we are using our platforms to pursue higher office.”
He labels it a “trap” because it amounts to a claim that “cannot be disproved.” “Once a person is labeled as an auditioner, everything they do will be interpreted as an audition. If they act prudently, it’s to avoid attention and aid their candidacy; if they act boldly, it’s to attract attention and aid their candidacy. Auditioners become trapped in a vicious loop.”
[III.] Professor Blackman’s point is straightforward yet essential. No one can peer into another’s heart to determine his true motivations or ambitions. Consequently, the accusation of auditioning is, in a sense, irrefutable. Some actions might strike certain observers as auditioning, while others may view them simply as performing the duties of the office in the judge’s best judgment.
There is no perfect remedy. So a capable judge must accept that criticism is part of life—and that unfalsifiable charges accompany the role. The First Amendment protects every citizen’s right to critique public officials—whether the critique is fair or unfair.
That protection does not make unjust assaults on one’s honor easier to swallow. No one enjoys being booed. It’s reasonable to expect that a judge who values fairness, neutrality, and integrity might care about his reputation. Yet a deep personal regard for these values is the price of participating in a meaningful and nuanced public life.
Public criticism isn’t for everyone. But if it becomes unbearable, resignation remains an option. Federal judges enjoy life tenure—not a life sentence.
[IV.] I have no reason to doubt the sincerity of Defendant’s corporate representative. Delays within the justice system are real, widespread, and vexing.
Nor do I doubt the genuineness of the magistrate judge’s own demeanor. The accusation that his rulings are irrevocably colored by personal ambition is equally vexing.
Yet in this instance, the magistrate judge chose to vent that frustration through an ex parte meeting with the defendant. On a personal level, I can understand that impulse. Nevertheless, I would not have advised such a course.
Ultimately, the only viable approach for a capable judge is to articulate the governing principles that determine the case, and to strive to apply those principles consistently in all comparable situations—without yielding to fear, favoritism, or concerns about personal consequences. Then let the record speak for itself over time.
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“Those who seek public office should not merely anticipate criticism, but welcome it. Rigorous scrutiny is not a defect; it is a defining feature of our constitutional framework. In our country, we trust citizens to discern what is right—and to rely on robust, relentless debate to steer them.”
