Tamanaha on Civil Disobedience by Judges

As a follow-up to my earlier post, my friend and former colleague Brian Tamanaha, one of today's leading voices on the rule of law, agrees that civil disobedience by judges is an option, but probably not the best one:

I see no conceptual reason why judges cannot commit civil disobedience. They can be conscientious objectors to the law like anyone else, though they must be prepared to be fired as a result, because they have taken an oath to abide by the law which they will have violated.

As you indicate, it perhaps makes a stronger point than the alternatives. I would only add that, with respect to integrity of conduct and belief, it seems to me that the resignation alternative has more to commend it. By resigning they do not violate their oath to law and they do not commit the moral wrong. By civil disobedience, they act consistent with the moral view but violate their oath to the law. You should remember that the party before the court has legal rights as well, which the judge will be knowingly trampling (however well meaning), and the idea that the appellate court can step in is not a complete solution, especially when time is of the essence.

Perhaps you also underestimate the signal given by resignation. Quitting one’s job is a protest to the system that exacts a high personal cost; in contrast, civil disobedience imposes the immediate cost on the party before the court, and will likely result in a sanction to the judge that is less than being out of a job. Which of these two positions raises a more dramatic protest as a matter of personal conscience?

Rob