Our president appears to enjoy belittling his political opponents with catchy nicknames. As offensive as that may be, these taunts are directed at people who chose to be in the political arena. His attacks on judges, however, are an entirely different matter.
Federal judges are appointed by the president, confirmed by the Senate and have life tenure. Once they take the oath of office they are members of the only non-political branch of government. Judges are bound by the Judicial Code of Conduct, which restricts their ability to respond to unwarranted attacks. Canon 3(6) of the code states that “a judge should not make public comment on the merits of a matter pending or impending in any court.” The commentary on that section states that “the judge should take particular care so that [a] comment does not denigrate public confidence in the judiciary’s integrity and impartiality.”
Similarly, the American Bar Association’s Model Code of Judicial Conduct states that “a judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court.” However, that code also states that “a judge may respond directly or through a third party to allegations in the media or elsewhere concerning the judge’s conduct in a matter.”
Before turning to who can and who should respond to the president’s attacks on judges, a review of some of those attacks—beginning at the time he ran for public office, is the place to begin. The earliest was in May of 2016 when he attacked Judge Gonzalo Curiel who was hearing a case accusing the Trump University of defrauding students. He began by calling the judge a “hater of Donald Trump, a hater. He’s a hater.” In June of 2016 he went on to say “Now, this judge is of Mexican heritage. I’m building a wall, OK?” and later he accused the judge of being “very pro-Mexico.” When asked by a reporter if he suspected the judge’s race is the reason for his unfavorable ruling, the president replied: “I think that’s why he’s doing it.” On May 30 he tweeted “Curiel is very unfair. An Obama pick. Totally biased- hates Trump.”
In September of 2016, at the first presidential debate, he was asked by Lester Holt, the debate moderator, whether he was aware that the police tactic of stop and frisk, as practiced by the New York City Police Department, had been found to be unconstitutional. His response was to attack the judge—accusing her of being “a very against-police judge.”
On Feb. 3, 2017, a judge in Washington temporarily stayed enforcement of the president’s first travel ban. In response, the next day the president tweeted “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous.” The next day he tweeted “just cannot believe a judge would put our country in such peril. If something happens blame him and court system.”
On April 25, 2017, a California judge temporarily blocked the president’s order withholding federal funds from “sanctuary cities.” The next day the White House issued a statement saying, “the rule of law suffered another blow, as an unelected judge unilaterally rewrote immigration policy for our Nation. This judge’s erroneous ruling is a gift to the criminal gang and cartel element in our country . . . . This decision is yet one more example of egregious overreach by a single, unelected district judge.”
Most recently the president attacked a judge as an “Obama judge” which elicited a response from Chief Justice John Roberts, who had apparently had enough. On Nov. 19, 2018, a California judge temporarily halted the president’s order barring immigrants who enter the country illegally from seeking asylum. On Nov. 20, in response, the president said “This was an Obama judge. I’ll tell you what, it’s not going to happen like this anymore.” The next day Chief Justice Roberts said, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”
The president did not stay silent. He responded to Justice Roberts the next day, via Twitter, of course, writing “Sorry Chief Justice Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country.”
The media bears some share of responsibility for attaching political tags to judges. Many articles describe a judge who issues a controversial ruling by the name of the appointing president. The talk show hosts do the same. Judges have also been identified as a “Republican or Democratic judge” based on the party of the appointing president. When a judge contrary to expectations based on those labels, it is often the lead line in the story. A recent headline read “Trump-Appointed Judge Hands Donald Trump Bad News in Robert Mueller Russia Case.”
The continued mention of the appointing president cements the political association of the two in the public perception. A decision by the media to eliminate this identification would be helpful in changing the perception that the judiciary is just another political branch.
The answer to the question of who should defend judges is all of us. While individual judges cannot defend themselves there are plenty of folks who can. It was right for the chief justice to respond to the constant attacks on judges as political actors. The media should also join in. Judges who are not involved in particular cases can also speak out in their many public appearances. The bar associations bear a special responsibility to defend the judiciary and most do. The political labeling impugns one of our proudest achievements—a truly independent judiciary.
Shira A. Scheindlin was a United States District Judge in the Southern District of New York and now a mediator and arbitrator and of counsel at Stroock & Stroock & Lavan.