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Supreme Court Justice Antonin Scalia once said judges should adopt a “rope-a-dope” posture when criticized, taking the hits passively until their adversaries wear themselves out. But with 25 judges suing for libel in 2005 alone — nearly 10 percent of all libel suits filed nationwide — that form of judicial restraint is fading, raising questions about the role, and the ethics, of judges and whether they have a right to be as litigious as everyone else. Last week the news media began to push back, questioning when and whether judges should be able to use their own court systems as a tool to retaliate against the media. “It’s time for us to ask, �When should judges sue for libel, and when shouldn’t they?’ ” says Bruce Sanford, a leading libel lawyer for news organizations and authors, and a partner in Baker & Hostetler’s D.C. office. “ If these suits lead the public to feel that judges are taking care of their own, it will only add to cynicism about the judicial process.” Sanford’s Connecticut Avenue offices are turning into something of a war room in the growing battle against judicial libel suits. Sanford and local lawyers for the Kane County Chronicle, a small Illinois newspaper, filed a federal civil rights suit June 12, claiming the paper cannot receive a fair hearing in its appeal of a libel suit that was filed and won by the man who rules the state judiciary: Illinois Chief Justice Robert Thomas. Thomas won a $7 million verdict against the paper — later reduced to $4 million — in a dispute over opinion columns in the Chronicle that suggested that political “shimmy shammy” influenced Thomas’ handling of a disciplinary case against a local prosecutor. Thomas’ dogged pursuit of the lawsuit — which included calling his Supreme Court colleagues as character witnesses — has “compromised the independence and integrity of the Illinois judicial system from top to bottom,” Sanford’s brief says. The state Supreme Court, in fact, is now so compromised that it cannot hear any final appeal of the judgment against the newspaper. The newspaper’s complaint, in the form of a Section 1983 civil rights suit, asks the federal court to stay the newspaper’s appeal until after Thomas leaves the bench — which will be 2010 or later, if Thomas chooses to stand for re-election. Meanwhile, earlier this month, the Boston Herald, another Baker & Hostetler client, wired $3.4 million to Massachusetts Superior Court Judge Ernest Murphy, after losing final appeals in a libel suit before that state’s Supreme Judicial Court. The money represented an award plus interest that Murphy won in his suit over Herald stories alleging he made insensitive remarks about a rape victim. “Fifteen years ago that case would not have been brought,” Sanford says. “We’re in a whole different climate now.” JUDGES AS WITNESSES The Thomas and Murphy suits are among the most successful libel suits of recent years — adding, media lawyers say, to the suspicion that judges have an edge when their libel awards are appealed. Murphy’s was the highest libel verdict in Massachusetts since 1980, according to the Media Law Resource Center, and Thomas’ was the largest compensatory award for defamation in Illinois history, Sanford’s brief claims. Sanford says that judges should not be barred completely from filing libel suits, but they should be reserved for the most serious claims of damaged reputation. But Thomas’ complaint is far more trivial, Sanford insists — partly because he is suing over opinion columns, which are usually immune from libel suits anyway, and partly because they only accused him of being political, which is hardly unusual in Illinois. Thomas, a one-time place-kicker for the Chicago Bears, suffered no damage because of the columns, Sanford says, noting that he was named chief justice by his colleagues after the columns appeared. In spite of all this, Sanford says, Thomas chose to subject the Illinois judiciary to unnecessary charges of favoritism. “He could have made a public statement denouncing the columns, rather than suing,” Sanford says. “That’s a joke,” says Thomas’ lawyer, Joseph Power Jr., of Chicago’s Power Rogers & Smith. The columns, in effect, accused Thomas of illegal conduct, Power says, and Thomas was entitled to go to court to repair his reputation. “The last time I looked, the Seventh Amendment did not contain an exception for judges,” says Power, referring to the constitutional amendment guaranteeing a right to civil jury trials. “As a judge, as a human being, you don’t give up your rights.” The 2006 trial of Thomas’ lawsuit in Geneva, Ill., was, by all accounts, unusual. “It managed to push more unique buttons than any libel case I ever studied,” says Sandra Baron, executive director of the Media Law Resource Center, which aids the media in defending against libel and privacy suits. Six current and former state Supreme Court justices testified on his behalf, many addressing Thomas as “Your Honor,” even though he was the plaintiff, not the judge in the case. But when lawyers for the newspapers sought to cross-examine the justices about the disciplinary case that was the subject of the newspaper’s columns, they refused, invoking what was later upheld on appeal as a “judicial deliberation privilege.” The newspaper’s brief alleges that “the Illinois judiciary barricaded itself behind a wall of privilege that made it impossible for the Chronicle defendants to defend themselves.” Another problem, in the newspaper’s view: the same appellate judges who endorsed the privilege were assigned to hear the newspaper’s appeal. And that assignment came from the Illinois Supreme Court, five of whose justices have recused themselves from hearing the final appeal. With no quorum, the state Supreme Court cannot hear the case. Having a fair and complete appeals process available is especially important in libel cases, says Sanford, because U.S. Supreme Court precedent calls for de novo review of the facts on appeal. “The chief justice could have seen from day one that his lawsuit would contort the Illinois judiciary in ways it has never seen before,” says Bruce Brown, another Baker & Hostetler partner working on the judicial libel cases. At trial, one of Thomas’ claims was that the 2003 columns he objected to deprived him of a spot on President George W. Bush’s short list for a U.S. Supreme Court position. To counter that, the newspaper called Eleanor Acheson, President Bill Clinton’s judge screener, as a witness. She voiced doubt that Thomas was ever on such a list, and said the opinion columns would have made no difference. “It would not stop his appointment,” Acheson testified. �EMBOLDENED TO SUE’ The rise and potency of judicial libel lawsuits also highlights the increasing role of judges as First Amendment players. The U.S. Supreme Court ruled in 2002 that judges can say more about their views during election campaigns without violating ethics rules, and the American Bar Association recently added a new model rule that allows judges to respond to criticism — or to ask third parties to defend them. “Judges are more emboldened to sue nowadays,” says Gary Hengstler, director of the Reynolds National Center for Courts and the Media at the National Judicial College. Hengstler holds workshops for judges on how to handle the media, and often hears complaints about the press. But Hengstler hopes the ABA’s new rule allowing judges to respond to criticism will act as a safety valve. “If judges employ that rule and respond to criticism publicly, that will get covered,” Hengstler says. “Hopefully that will alleviate the need for libel suits.” One way or another, lawyer James Goodale, former vice chairman of The New York Times, also hopes judges will stop suing newspapers. “When judges judge judges, there is a built-in conflict of interest. . . . It would be the better part of valor for judges not to bring these cases,” Goodale wrote in a recent New York Law Journal column. “Once they are brought, they may find themselves in the comic opera posture of the Illinois Supreme Court.”
Tony Mauro can be contacted at [email protected].

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