In recent years, the federal judiciary has been subjected to increasingly vitriolic criticism from political quarters, leading to security threats against judges and a decline in public faith in the court system. These disparate attacks come from politicians as varied as Rep. Matt Gaetz (R-Fla.), Senate Majority Leader Chuck Schumer (D-N.Y.), New Jersey Governor Phil Murphy, a Democrat, and Sen. Josh Hawley (R-Mo.). Such criticism inevitably gets reported and amplified by traditional and social media, imposing substantial pressure on the targeted judges who are prohibited from publicly commenting about the cases before them.
In response to the escalating number of threats to judges’ safety, which the US Marshals Service reported as over 4,500 in 2021 alone, Congress passed new security measures for federal judges in December 2022. The Administrative Office of the US Courts noted that four federal judges have been killed in the past 45 years. Notably, this figure does not account for attacks at the state level, such as the recent fatal shooting of Maryland Circuit Court Judge Andrew Wilkinson.
Unaddressed or uncountered, these bursts of criticism can erode the public’s perception of the judiciary’s integrity, impartiality, and overall credibility. Lawyers and bar associations have a professional obligation, outlined in Rule 8.2 of the ABA Model Rules of Professional Conduct, to counter baseless attacks on judges and the judiciary.
Some legal associations, like the American Board of Trial Advocates (ABOTA), have taken proactive steps, such as developing a protocol to respond to unfair criticism of judges. This protocol details the conditions under which it is necessary to respond to such criticism and the most effective ways to do so. For instance, they emphasize the need for responses that are “prompt and accurate,” ideally within 24 to 48 hours of the initial criticism.
While some legal organizations in the US, like 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, may have implementing similar protocols, the persistent stream of unfair criticism aimed at judges and the judicial system suggests more is needed, as responses appear infrequent.
Without public respect and adherence to judgments and orders issued by courts, the rule of law, which is central to our democracy’s function, is at risk. Therefore, it is imperative that the legal profession counteracts the constant flow of unjust criticism towards the judiciary and individual judges.
This article is based on the piece ‘The Judiciary Is Under Attack. Lawyers Have a Duty to Defend It‘ written by Professor Paul Grimm, director of the Bolch Judicial Institute at Duke Law School and a past district judge of the US District Court for the District of Maryland.