I have long been a critic of Judge Kathaleen McCormick of Delaware over her absurd rulings against Elon Musk and his compensation package at Tesla. In my view, her rejection of the decision of shareholders to approve a generous compensation package reflected a deep bias against the billionaire. Now, McCormick is in hot water after “liking” a story about Musk losing a major case in California. McCormick’s LinkedIn message has prompted Musk’s team to demand that she recuse herself from any future proceedings involving Musk.
McCormick drew criticism from some of us for her refusal to accept the shareholders’ decision on Musk’s compensation. In blocking the compensation, she essentially claimed to be protecting shareholders from themselves. She ignored successive votes in a ruling that seemed tailored to Musk — and McCormick’s dislike for him.
Now, 15 months later, McCormick was found to have reacted to a LinkedIn post on the California case. A jury consultant in the federal case posted a taunting message after the $2 billion verdict, reading “Sorry, Elon. Sorry, Quinn Emanuel. Thanks $2 billion for your help in this trial. It was a pleasure working against you.”
LinkedIn allows users to simply “like” a posting or really like a story by hitting the “support” button. “Support” depicts a heart cradled in an outstretched hand and is considered a stronger expression of support.
The selection of the “support” option resulted in the posting of the image and the phrase “Katie McCormick supports this” floating above the original post.
After the outcry, McCormick insisted that she may never have hit the support button at all: “I either did not click the ‘support’ icon at all, or I did so accidentally. I do not believe that I did it accidentally.”
If she hit the button, she would not be the first judge to be undone by social media. The problem is that, given her earlier rulings against Musk, it is entirely believable.
Judicial ethics rules are struggling to keep up with such controversies and currently remain fairly vague. While judges are admonished not to use their titles in social media postings, the advice remains commonsensical. ABA Standing Comm. on Ethics & Prof. Responsibility, Formal Op. 462 simply warns judges to assume that things posted to a social media site will not remain within the judge’s social circle.
Social media is an obvious danger for judges, including liking posts by lawyers who are or will appear before them. Obviously, political postings (or likes of such postings) raise additional questions about their lack of neutrality.
Indiana warns its judges that “Even the most considerate judge who has taken steps to minimize conflicts and other ethical issues when using social networking sites should be prepared to deal with unexpected issues that may arise.”
Ironically, it is not Judge McCormick’s social postings but her judicial postings that raise the greatest questions over her judgment and independence on matters related to Elon Musk.