Not every criticism of a judge is worthy of a response, said U.S. District Judge Nannette J. Brown of New Orleans. “You have to resist the need or want to engage because people do have a right to comment,” she said.
Ethical considerations are also a concern, Brown added. Every judge has seen news articles that include inaccuracies about their cases, she said, but often “we aren’t in a position to respond” because of judicial canons that may discourage judges from speaking out publicly.
Robert H. Edmunds Jr., former associate justice of the North Carolina Supreme Court, noted that the North Carolina judicial code does not prohibit a judge from making public statements in the course of official duties or from explaining for public information the proceedings of the court.
“That does open the door to some extent,” Edmunds said, but most judges believe that means they are free to explain rulings or speak within the confines of the court. “You don’t see a lot of judges looking at that, their eyes lighting up and saying, ‘I’m going to hold a press conference. … Judges, in many instances, self-silence. They realize it comes with the job.”
To help judges who cannot respond to inaccuracies or attacks, the ABA offers a free pamphlet called “Rapid Response to Fake News, Misleading Statements, and Unjust Criticism of the Judiciary.” It is published by the ABA Section of Litigation Committee on the American Judicial System and includes recommendations on whether to respond to attacks and how.
Among the brochure’s recommendations: State and local bars should form rapid response teams of media-savvy lawyers who are authorized to decide whether a response is appropriate and, if so, the extent of the response.
“Every local and state bar association should have a team in place that can rapidly respond to anything that might come up,” said Alan S. Kopit, co-chair of the ABA Committee on the American Judicial System and general counsel of MediLogix LLC. “Unless you have something in place already, ready to go, you’re not going to be able to respond effectively. … You need to have that team ready, know your contacts and make sure you know who you’re going to contact in the media.”
U.S. Magistrate Judge Nannette A. Baker of St. Louis agreed. “One of the things that bar associations and courts should be doing,” she said, “is planning ahead and having a team in place, having a public information officer, if that is a possibility, in place to deal with these issues before they become issues.”