We have all witnessed judges being excoriated in the tabloids and by strident public figures for grossly unpopular decisions. The judges are most often silent—not responding to their critics. They leave their courthouses at night-time or through backdoor corridors, some hiding their faces like criminals behind newspapers to avoid the paparazzi.
These judges may simply be thick-skinned. Or, more likely, they have decided that—even in the face of one-sided, and often uninformed, public condemnation—they must sit on their hands in silence. No response from them and “no comment” from their staff. These judges refuse comment when asked for interviews by journalists because they believe that, as judges, the unwarranted attacks must go unanswered by them given the canons of judicial propriety. This, even though executive and legislative officials are not only “ethically” free to publicly criticize others, they seem to actually relish doing so as Election Day approaches.
Members of the bar, particularly those who follow these cases, may recognize that the opinions for which these judges are criticized are well within precedent and, indeed, are often the only ruling which could have been made given the bounds of the law. An attorney who follows such cases in the professional journals or even the tabloids might read the relevant decisions (or at least excerpts of them) to fairly appreciate the propriety of the outcome.
She will, thus, be armed with sufficient information to understand why these decisions were legally warranted or justified, if not absolutely necessary. Most attorneys, too, will also understand that the judges’ refusals to comment are likely ethically mandated. Chief Justice Earl Warren, after all, in a paradigmatic, gross instance of judge-bashing, felt the need to stand mute even though billboards all across the South were plastered with harsh screeds, demanding his impeachment in the wake of Brown v. Board of Education.
But what about the general public? If judges are asked to comment on their actions and decline to do so, the public-at-large often believes they are eluding comment because their judicial acts were basically indefensible, i.e., they couldn’t plausibly explain their rulings to the satisfaction of an even mildly objective reader. The situation is exacerbated when the tabloids don’t care to fairly explain why the judge may not be available for comment.
That said, though, is the general public well-served, if served at all, when an information vacuum is created because the judge—the participant in a litigation undoubtedly best equipped to explain why he took the action he did—stands mute in the face of public criticism? Must the judge under siege be relegated to a defense in the media from counsel for the victorious litigant, who transparently has his own interest in presenting the judge publicly as a latter-day King Solomon, or even Benjamin Cardozo—an exemplar of judicial rectitude and wisdom?
The issue of how to address public criticism has arisen recently in the highly-publicized instance of Southern District Judge Shira Scheindlin. Putting aside the merits of her controversial decision declaring the New York City Police Department’s implementation of “stop and frisk” laws during the Bloomberg Administration unconstitutional, proponents of the practice launched daily, often ad hominem, attacks on her, presenting her as a judge gone off the rails, having an unrestrained bias against the Police Department.
But Scheindlin didn’t take the path of least resistance, and spoke up frankly and openly in a few media outlets. What’s more, she did it while the case was pending, and reportedly challenged colleagues whom she believes fail to stand up to the government as a litigant. While these actions are not unheard of, they are clearly unusual and certainly provocative.
After Scheindlin decided for the plaintiff victims of stop and frisk and the city began its appeals of her rulings, the Second Circuit found that, by giving those interviews, Scheindlin had acted in a manner that raised questions about her “appearance of partiality” in how she presided over the cases for six years.
Whether she crossed the line in comments she made to journalists, or what was impliedly attributed to her during the interviews but taken by the interviewer from the court transcripts, is a subject for a different discussion. The real question here is this: could Scheindlin, or any other judge who is blasted by the tabloids and pundits, have been spared the jolt to a distinguished career if there had been a judicial-like spokesperson or an infrastructure in place to essentially make their case for them.
Could there not be an ombudsman, or perhaps a standing committee of judges in place in the courthouse, to respond on behalf of a judge who is largely defenseless in the face of sometimes irresponsible attacks; a body that could explain the law or the facts to the public in an objective way? Had such a body existed, it would have been able to “tell the world” that the judge’s decision or handling of the case, while perhaps unpopular in some quarters, was hardly rogue in nature and may have been wrongly presented to the public as such.
Such an entity wouldn’t be called upon to tell thoughtful people that the tabloids themselves may have gone off the rails, maybe spoon feeding their (left wing or right wing) readership or viewership “Not-So-Fair and Balanced” reportage. Nor would its job be to “set the record straight,” as if that would necessarily be doable.
No, its job would be to fill the void; to undo the imbalance when the press reflexively reports that “the judge and chambers would not comment” in the face of reports or editorials that “the judge should be thrown off the bench, because his [or her] decision is a disgrace.”
If, in the face of an explanation by judges or court administrators uninvolved in the decision under fire that tries to explain the controversial rulings, the press declines to publish both sides, well that’s its right, indeed. But, at least, if such an infrastructure were in place, we wouldn’t be relegating judges to hiding when they make a ruling that, at least, in some quarters, is painfully unpopular.
The point is not whether a district judge is right or wrong on the merits—the circuits reverse and modify district court opinions every day, and cases are sometimes reassigned. The point is this: at what cost must a judge suffer the negative, perhaps even merciless, publicity that does harm to a judge’s well-earned reputation over a career?
And by the way, and it’s not really by the way, just consider how badly the judiciary in general is served when a judge, who is presented publicly by the tabloids as a poster child for all that is wrong with our courts, is so widely and wildly portrayed as a judge out of control, with no one in officialdom speaking out for the judge. Not to mention the many journalists who actually want to get it right but are faced with a void—no one in authority to speak up; rather, they are faced with a “we can’t permissibly correct (or explain) the record” regime.
At least the president, Congress and state and local executives and legislators are able to try to publicly explain themselves when things go awry—or when someone with a platform is angry because of an action taken. But, who would want to be a judge who is unable to stand up for himself or herself—or, more to the point here, have some legitimate, credentialed entity stand up for them—when their decisions are unpopular, but nonetheless required by adherence to and proper interpretation of precedent?
How easy it is to do the “popular.” But we need to provide—for both the benefit of the judiciary and for the benefit of a public that wants to understand the legitimate basis for a decision—a mechanism so that decisions by judges are fairly presented to the public, particularly when they are necessarily “unpopular.”
Joel Cohen is an attorney at Stroock & Stroock & Lavan and a Law Journal columnist.