Fifth Circuit Judge Harold DeMoss recently had an article of his published in the Houston Chronicle. In this article he argues that the Constitution does not contain a right to privacy, and he calls for a national referendum to abrogate Roe v. Wade.
Is it appropriate for a sitting federal judge to write such articles, and call for such a national referendum? In the last paragraph of the article, Judge DeMoss seems to suggest that he is writing the article in his individual capacity, noting that (emphasis added): "As a U.S. citizen, I respectfully petition the Congress to call a national referendum to permit the people to just say no or yes to the Supreme Court's usurpation of the power to amend the Constitution. I invite others who share my views to do likewise." Yet the byline of the article read "By Judge Harold R. DeMoss Jr."
Given that Judge DeMoss is on the record as opposing the right to privacy, doesn't anyone litigating this issue in the Fifth Circuit have a reason to move for his recusal? How can he claim to be impartial in right-to-privacy cases? He would likely counter with the rejoinder that he would follow Supreme Court precedent. But if there is no precedent on point, can't we be reasonably sure that, in light of his comments, he will absolutely side against the party seeking to extend the right to privacy?
Morever, in the next confirmation hearing, when a judge is asked whether there is a right to privacy, might Senate Democrats use this article to support their contention that a nominee should not refuse to answer questions with some specificity? I can see Senator Kennedy saying: "Now, now, Mr. Kavanaugh, stop evading my questions. Judge DeMoss felt free to state his views on this issue. In light of this, why do you refuse to state your views?"
Anyhow, I'd love to hear your thoughts on the judicial ethics issue. My off-the-cuff response is that if I were crafting a right-to-privacy argument before a Fifth Circuit that contained Judge DeMoss, I'd consider the best possible outcome to be 2-1.