Off the bench, judge blogs her mind

Gertner's observations an anomaly in Mass.

US District Court Judge Nancy Gertner said judges are too often silent on issues they should publicly address. (Wendy Maeda/Globe Staff)

For those who think the typical blogger is a twenty-something tapping on a laptop while wearing pajamas and listening to Death Cab for Cutie through earbuds, a Brookline woman who blogs on legal affairs for Slate magazine is an anomaly.

At 62, she finds listening to music with lyrics too distracting when she writes, although she sometimes likes Chopin in the background. She typically composes her blogs in her work attire - a business suit or a dress.

And she's a federal judge.

"I am an unlikely blogger," wrote US District Court Judge Nancy Gertner of Boston in March in her introductory submission to "Convictions," Slate's new blog on legal issues. And that's not just because she edits her drafts on paper before launching them into cyberspace.

Gertner appears to be the only judge in Massachusetts who shares her unfiltered legal views in the blogosphere, according to officials in the federal and state judiciary. A favorite of the state's defense bar and plaintiffs' attorneys, and the bête noire of some in law enforcement, she is also the only jurist among nearly two dozen contributors to what Slate calls its "blogging destination for smart legal con versation and commentary."

Gertner, whom President Clinton nominated to the bench in 1993, has long written on legal matters in law journals and newspaper op-ed pages.

For the past nine years, she has also taught two courses on sentencing, one a semester, at Yale Law School, her alma mater, where she shares her insights in her characteristically chatty manner. So blogging, she says, is not a radical departure.

"I saw this as the new media version of what I've always been doing," the former criminal defense lawyer said recently at her office at the John Joseph Moakley Courthouse. "If this is where people are getting information, this is where we have to be."

Not everyone agrees.

Bruce M. Selya, a senior judge on the Court of Appeals for the First Circuit, which reviews cases from Gertner's court, said he respects her and is sure she has thought out the potential ramifications of blogging. But he would never do it.

"I think it would be a great strain on me to be careful not to say anything that could come back and make it seem like I prejudged a matter when it actually came before me," said Selya, who usually sits in Providence.

By her own admission, Gertner is limited in what she can write, unlike the law professors and writers who make up the blog's other contributors. The Judicial Code of Conduct says a judge cannot make public statements that "might reasonably be expected to affect the outcome or impair the fairness" of cases pending in any federal court. She also avoids expressing views that could prompt litigants to ask her to disqualify herself, she said.

Still, Gertner says judges are too often silent on issues they should publicly address, such as how federal sentencing guidelines have led to what she and other jurists consider unreasonably long prison terms for nonviolent drug offenders. Judges must also do a better job explaining why the judicial code forbids them from discussing cases, she said, because their silence after controversial rulings is misread as arrogance or cowardice.

In her four postings, Gertner has criticized using federal courts for criminal cases that can be prosecuted in state courts and disputed that soaring incarceration rates in the past 30 years caused violent crime to fall.

"In short, it is not remotely clear that the blunderbuss approach to crime - imprisoning everyone for as long as possible - works, much less in proportion to its considerable costs," she wrote in an April 28 piece she posted at 12:24 a.m.

In addition to restrictions on topics, Gertner has limited time to blog, given what she calls her "day job" and the course she teaches one day a week at Yale.

She typically writes on her Panasonic Toughbook laptop in her office after her judicial duties, on the train between Boston and New Haven, and at home, she said.

The code precludes her from accepting payment. The only outside job for which a federal trial judge can receive money is teaching, she said, and that can account for no more than 15 percent of the judicial salary of $165,200 a year.

Emily Bazelon, a Slate senior editor who took Gertner's sentencing seminar at Yale, said she and the editor of the soon-to-be-launched blog initially asked another federal judge, Richard A. Posner, to contribute. But Posner, who sits on the Court of Appeals for the Seventh Circuit and lectures at the University of Chicago Law School, was busy with a blog he writes with a Nobel Prize-winning economist.

Bazelon then asked Gertner, who promptly agreed. "She's a really good writer, and we're happy to have that," Bazelon said.

Although the online magazine asks most other contributors to post at least twice a week, Bazelon said, editors recognize Gertner cannot do that.

Douglas W. Kmiec, a law professor at Pepperdine University, estimates he has posted two dozen times. Although Gertner has blogged less often, he said, her contributions are valuable.

"It's an awesome responsibility to be on the bench and decide whether or not one's fellow citizen is going to be incarcerated," said Kmiec, who was also a constitutional legal counsel to President Reagan and President George H. W. Bush, and is a contributor to Convictions. "It's one thing for us pontificators to speak grandly about how we'd like to see the law arranged. It's another for someone who bears the burden of that responsibility and has identified a . . . shortcoming in the law to be able to say, 'I've seen the consequences of this, and the consequences are worrisome.' "

Regardless of how often Gertner blogs, she makes one point emphatically clear. "I do not blog on the bench," she said.

Jonathan Saltzman can be reached at jsaltzman@globe.com