by Steve Timmer

Oct 27, 2018, 9:00 PM

Doug Wardlow’s blogging while clerking scandal

A lawyer’s perspective

City Pages, The Intercept, and the Pioneer Press have each published stories about a blog that AG candidate Doug Wardlow wrote or contributed to while he was working as a law clerk for the Minnesota Supreme Court, specifically for Justice G. Barry Anderson in 2004-5.

And what a special blog it was. According to the articles cited, Wardlow’s posts included ones that said treating women differently was natural and fair because women’s bodies were designed to bear children, activist courts were “cudgels” to force acceptance of gay sex, gay marriage, and abortion, and dismissing pro-choice arguments, writing that money was just like being eloquent for free speech purposes, saying there was no constitutional separation between church and state, supporting the Swift Boat Veterans for Truth against John Kerry and “Give ’em Hell, Zell” in the 2004 presidential election, advocating for Condoleezza Rice for Secretary of State after the election, lamenting efforts to expand, especially, early voting, and also lamenting the prohibition of the death penalty for minors.

These were all hot-button issues, naturally, and all but a few were things that might wind up before the court that Doug Wardlow was clerking for; it was his first job out of law school.

Most young people entering a new career or profession are eager to be successful and follow the rules. But writing this blog was a very un-judicial activity. According to these same linked stories, clerks were admonished not to do things like this: to engage in political political writing or activity. That is hardly surprising. It’s pretty obvious why.

The judicial branch is the non-partisan one. It often sits between the legislature and the executive and adjudicates partisan disputes. Judges are told to avoid impropriety and even the appearance of impropriety. It won’t do to have judges or staff offering opinions on a variety of topics outside of the actual published opinions of the courts. It would undermine their legitimacy. The courts rely on the other branches to enforce their decisions or adopt legislation in conformity with them, so legitimacy is really important.

But Wardlow didn’t think the rules applied to him. Kind of cheeky for a snot-nosed kid right out of law school, don’t you think?

Doug Wardlow has not admitted that he is the pseudonymous blogger on the Rostra blog, but if there is another right-wing nut who went to Georgetown undergraduate and law school and went to visit his helicopter pilot brother named Jason Wardlow who had just come back from Iraq in August 2004, well then Doug is one of the unluckier SOBs around.

Doug Wardlow’s “blogging while clerking” became so notorious at the Capitol that a senior legislator walked over to the Judicial Center to complain to the Court, and maybe to Justice G. Barry Anderson directly, about it.

But it isn’t just the inter-office memo that law clerk Doug Wardlow ignored. He also ignored foundational rules of the judiciary: the Code of Judicial Conduct, the Holy Writ. Here are a few reference to the Code:

Rule 2.3 [B] A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.

Rule 4.1 (A) (3) [A] judge shall not . . . publicly endorse or, except for the judge or candidate’s opponent, publicly oppose another candidate for public office.

Rule 4.1 (A) (11) [A] judge shall not . . . in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.

From Comment 1 to Canon 4: Rather than making decisions based upon the expressed views or preferences of the electorate, a judge makes decisions based upon the law and the facts of every case. Therefore, in furtherance of this interest, judges and judicial candidates must, to the greatest extent possible, be free and appear to be free [emphasis added] from political influence and political pressure.

From Comment 3 to Canon 4: Public confidence in the independence and impartiality of the judiciary is eroded if judges or judicial candidates are perceived to be subject to political influence.

Well, fine, you say, they’re the rules for judges, not clerks.

Rule 2.12 (A) A judge shall require court staff, court officials, and others subject to the judge’s direction and control to act in a manner consistent with the judge’s obligations under this Code.

The judge’s obligations are the clerk’s obligations. And when you are a lawyer, especially, you should understand that.

I am not going to parse these sections for you; you can do that yourselves. But you can see, for example, how calling women empty vessels for men’s seed might be a problem.

From the day you enter law school, or at least when I did about 46 years ago, well, and I know it is true today, too, you are taught that you owe your fidelity to the rules of the profession, as a lawyer, and certainly as a judge, or somebody who works for a judge.

Doug Wardlow claims to honor the rule of law, but from his very first professional engagement, he blew it off. He’s a dirty, rotten liar.

Please excuse my language, but I think Doug Wardlow is a pestilential little shit. The idea of installing him at Minnesota’s top lawyer makes me gag. I don’t expect that most of you can understand how I feel about this. But I ask you to think about how you would feel to be cheated on.

Because that is what he did.