Misleading Criticism

Criticism of judges and their decisions is not inherently wrong.  However, when criticism is misleading and the judge in question is prohibited from public response by ethical rules, judicial independence is threatened.  ABA President Jerome Shestack said in 1998, “I have no objection to healthy criticism.  Every lawyer who appeals is criticizing a ruling.”  [i] 

Criticism of judges and their decisions is a necessary part of the justice system.  When judges engage in misconduct or are unable to adequately perform their duties, criticism is needed to address the failure.  Also, as Shestack pointed out, the appeals process is a form of criticism that is inherent to the justice system, without which questionable rulings could not be reviewed.

When public criticism takes the form of uninformed rhetoric about a particular judge or decision, the danger that the judge will suffer adverse consequences, including impaired independence, becomes a problem.  When politicians, lawyers, or citizens publicly criticize a judge or decision, the judge is generally precluded from responding by ethical rules. (Click here for text of rule.)

Therefore, unless someone, such as a bar organization representative, addresses the claims, the public gets a biased view of the judge or case at issue.  The ABA Report’s suggested response to the threat posed by misleading criticism which cannot be addressed by judges personally is that “state and local bar associations should develop effective mechanisms for evaluating, and, when appropriate, promptly responding to misleading criticism of federal judges and judicial decisions in each federal judicial district.”  [ii]

[i] ABA Chief Decries Judge ‘Intimidation’, AP.  Available online at http://wcinet.com/th/News/020298/National/93543.htm. 

[ii] See An Independent Judiciary, Report of the Commission on Separation of Powers and Judicial Independence, American Bar Association, July 4, 1997.