In recent years, the federal judiciary has faced unfair—and often venomous—criticism from both sides of the political aisle, leading to security threats against judges and, fundamentally, a dive in public confidence in the nation’s court system. Lawyers and bar associations need to step in and support better protections for judges.
On Aug. 18, Rep. Matt Gaetz (R-Fla.) introduced a resolution in the House of Representatives condemning US District Judge Tanya Chutkan for showing “political bias from the bench” as she presides over the criminal case against former President Donald Trump arising from the Jan. 6, 2021 riot at the US Capitol. Trump repeatedly has used social media to vilify the judges presiding over his criminal and civil cases.
In March 2020, Senate Majority Leader Chuck Schumer (D-N.Y.) spoke in front of the US Supreme Court and said Justices Brett Kavanaugh and Neil Gorsuch would “pay the price” if they voted to overrule Roe v. Wade.
In January 2023, New Jersey Governor Phil Murphy, a Democrat, accused US District Judge Renee Marie Bumb of being a “right-wing federal judge” after she issued a temporary restraining order blocking enforcement of a New Jersey gun control law.
And in March 2022, while Supreme Court Justice Ketanji Brown Jackson was undergoing Senate confirmation for the position she now holds, Sen. Josh Hawley (R-Mo.) took to social media to suggest that Jackson is soft on child pornography defendants.
Judges are prohibited from commenting about cases pending before them, so Chutkan, Bumb, Kavanaugh, Gorsuch, and Brown couldn’t defend themselves. But these attacks were widely reported by traditional and social media, ensuring the accusations would be heard far and wide.
The US Marshals Service, which is charged with protecting federal judges’ safety, reported more than 4,500 threats to judges in 2021. The Administrative Office of the US Courts reported that four federal judges have been killed in the past 45 years. And in a horrific attack in 2020, US District Judge Esther Salas’ 20-year-old son was shot and killed at her residence, and her husband wounded, by a disgruntled attorney—a self-avowed anti-feminist—who had appeared in Salas’ courtroom.
On the state level, Maryland Circuit Court Judge Andrew Wilkinson was shot and killed in his driveway last week. Police are seeking to arrest a father who Wilkinson had ruled against in a child custody case earlier that day.
Frightening events like these prompted Congress to pass important new security measures for federal judges in December 2022. But these attacks raise concerns beyond judicial safety.
If, as too frequently happens, inaccurate, unfair, and unjustified attacks against judges are left unchallenged, public perception of the integrity and impartiality of the targeted judges and the judiciary as a whole are undermined, and confidence in the judicial system diminishes.
If judges can’t speak for themselves, who should speak in their defense, and in defense of the judicial system? The answer is clear. Lawyers and bar associations are obligated to speak out when judges and the judiciary have been subject to unjustified and inaccurate attacks.
Rule 8.2 of the ABA Model Rules of Professional Conduct addresses Judicial and Legal Officials. Comment 3 to this rule states to “maintain the fair and independent administration of justice, lawyers are encouraged to continue traditional efforts to defend judges and courts unjustly criticized.” The rule further acknowledges the harm to the judicial system if unjust criticisms of judges and courts are met with silence within the bar.
Some bar associations have taken this obligation to heart. The American Board of Trial Advocates adopted a Protocol for Responding to Unfair Criticism of Judges. Its goal is to “[m]aintain and support public confidence in the judiciary by providing timely assistance to members of the bench in responding to adverse publicity, misinformation, or unwarranted criticism of an individual judge or the judiciary.”
ABOTA’s protocol establishes thoughtful guidelines for determining when criticism of a judge demands a response—and when it doesn’t. If the criticism represents fair opinion or comment, no response is appropriate.
But when criticism is materially inaccurate or misrepresents the legal system or a judge, or when criticism seriously and negatively impacts the community and the administration of justice, a response is needed.
The protocol also specifies that the response must be “prompt and accurate,” ideally within 24 to 48 hours. Finally, it acknowledges that to be effective, there must be a nationwide network to respond to unjust criticism of judges and the judicial system throughout the country.
Many distinguished legal organizations in the US have the same obligation and interest as ABOTA to counter unfair criticism of judges and the judiciary. The list includes the American Bar Association, National Bar Association, Federal Bar Association, Lawyers for Civil Justice, Defense Research Institute, American Association for Justice, American College of Trial Lawyers, and state bar associations.
Perhaps some have adopted protocols similar to ABOTA’s. But judging by the increasing frequency of unfair criticism directed at judges and the judicial system, and the relative infrequency of responses from the bar, it appears more is needed to fulfill the ethical obligation of lawyers to “to defend judges and courts unjustly criticized.”
When legal organizations do speak out, results can be dramatic. When Gov. Murphy accused Judge Bumb of being a “right-wing” partisan, the Association of the Federal Bar of the State of New Jersey and prominent lawyers who knew of Bumb’s impartiality and diligence immediately pointed out the unfairness of the attack. The governor’s press office was forced to issue a statement acknowledging its obligation to respect judicial decisions—even if it disagrees with them—and its respect for the judiciary.
Without the respect of the public and its willingness to adhere to judgments and orders issued by the courts, the rule of law—which is essential to the viability of our democracy—is imperiled. The steady drumbeat of unjustified attacks against the judiciary and individual judges threatens the safety of judges and diminishes faith in judges and courts. Responses to those unfair attacks, sadly, are not keeping up. Supreme Court Justice Samuel Alito has called out the bar’s failure to defend the justices, but most judges don’t speak on this issue.
So, who will defend the judges and the judiciary? The answer is clear: The legal profession must—now, and with a renewed sense of urgency.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Author Information
Paul Grimm is professor of law and director of the Bolch Judicial Institute at Duke Law School. From 2012 to 2022 he was a district judge of the US District Court for the District of Maryland.
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