August 10, 2019

Judges raise alarm as personal threats intensify, amplified by social media

Judge James Robart discovered the power of social media in a very frightening and very personal way.

On Feb. 3, 2017, the Seattle federal judge issued a temporary restraining order, blocking President Donald Trump’s first “travel ban.” That’s when the threats began. Before Robart had even left the courthouse, critics had posted his name, photo, address and phone number on the internet, along with his wife’s name, phone number and business address.

Angry callers flooded the judge’s chamber. Most asked the same two questions: Who are you to defy the president? How many votes did you get in the last election?

That was just the start.

The next day, Trump slammed the judge on Twitter, calling his ruling “ridiculous” and Robart a “so-called judge.” A day later, Trump tweeted again, more angrily: "Just cannot believe a judge would put our country in such peril. If something happens, blame him and court system. People pouring in. Bad!"

That’s when the threats grew frightening. By the time it was over, Robart had received more than 42,000 calls, letters and emails. Marshals determined that 1,100 were “serious threats,” including more than 100 death threats.

“Here’s the president of the United States saying this person is not a judge,” Robart recalled, “implying you can disregard his ruling, and saying these people are flooding into the country to rape your wife, rape your children and it’s all his fault. I think that crosses a line from legitimate criticism of a ruling and goes into a whole different area.”

Robart told his story Aug. 9 at the American Bar Association Annual Meeting in San Francisco, at a panel discussion titled “Undermining the Courts: The Consequences for American Democracy.” The ninth annual Symposium on the Independence of the Judiciary was sponsored by the ABA Standing Committee on the American Judicial System and the National Judicial College.

The panelists – six judges, including the chief justices of California, Kansas and Ohio – agreed on one point: Attacks on the judiciary are becoming more common. They urged fellow judges and lawyers to speak up.

Retired U.S. District Judge Shira A. Scheindlin of New York said it does not violate the ABA Model Code of Judicial Conduct for judges to speak out in defense of themselves or the judiciary. She quoted the rules: “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.”

California Chief Justice Tani Cantil-Sakauye said, “The judiciary has to speak up for itself. We need to be part of the solution, but before you can be part of the solution, you have to raise the alarm.”

 

Ohio Chief Justice Maureen O’Connor noted that attacks on the judiciary are not new, that they date back to the nation’s founding. “We are not as wed to the rule of law as we would like to think we are,” she said. “The consequence of that is what we are seeing now.”

She added, “Judges who are under attack have to speak up, and their fellow judges and the bar associations, and they have to do it continuously. We have the duty to speak up to protect the institution and thereby protect ourselves…. Your duty to speak up and protect the institution should not be blanketed and smothered by the concept of you’re doing something that is against your ethics if you speak up. It is your duty to do so.”

 

Washington Supreme Court Justice Debra Stephens said the erosion of public trust is seen across all branches of government, but the judiciary is unique. “In many ways,” she said, “what we experience in the courts is the result of the fact that we are the place where the littlest dog gets to lift his leg against the biggest tree.”

Several judges recounted recent threats and attacks on the judiciary from high-level officials, including governors, legislators, mayors and police chiefs. Such attacks are chilling the desire of younger lawyers to become judges, Stephens said.

“These very personal and sometimes terrifying attacks are having an effect,” she added. “You can’t do things the way we’ve always done, with our lips sealed and just talking in platitudes. We have to take more aggressive action.”

Kansas Chief Justice Lawton Nuss concurred, quoting the old saying that fortune helps the brave. “We must take steps for the judiciary,” he said.

The program was co-sponsored by the ABA Judicial Division, Section of Litigation and Tort Trial & Insurance Practice Section.