Legal Ethics

Attacks by Trump, Others May Put Judges at Risk, Report Says

Aug. 15, 2019, 9:52 PM

Attacks on courts by President Donald Trump and others may undermine faith in the judiciary and could place judges at risk, the Boston Bar Association said.

A report released by the group on Thursday cited troubling examples of commentary linked to the president, his administration, the judicial confirmation process, and media. It called on other bar associations and attorneys to defend judicial independence in the face of conduct that exceeds “caustic criticism.”

“While criticism of judicial decisions is to be expected, personal attacks and language that politicizes or otherwise casts doubt on the judicial branch as a whole has the potential to cause significant damage to our democracy,” the association said in a statement accompanying the report.

Moreover, personal attacks on judges also may result in “intimidation, harassment, or threats to their safety or the safety of their families,” group said in the report.

Trump’s been called out by Democrats for his slashing verbal and twitter taunts about courts and judges, especially those ruling against his personal interests or his policies. He’s also tangled with Chief Justice John Roberts over judicial independence.

The issue first made headlines in the 2016 campaign when Trump questioned the impartiality of a judge overseeing a civil case involving Trump University because he was Mexican.

The report also cited subsequent examples of objectionable criticism.

They included Trump calling Judge Jon Tigar of the U.S. District Court for the Northern District of California a “disgrace” and an “Obama judge” after he temporarily barred the administration in 2018 from carrying out a change in asylum policy.

That prompted a rebuke from Roberts who said the judiciary wasn’t comprised of “Obama judges, Trump judges, Bush judges or Clinton judges” but of “dedicated judges” doing their best.

Trump also tweeted that the California-based U.S. Court of Appeals for the Ninth Circuit was a “total disaster.”

The report cited an example involving then-Attorney General Jeff Sessions, who criticized a federal judge in Hawaii—“a judge sitting on an island in the Pacific”—for blocking the administration’s travel ban policy in 2017.

Also, the report noted newspaper columnists who call judges as subservient political hacks, and cited a bid by a bipartisan group of legislators to impeach a judge for “a decision that clearly was within the bounds of his discretion but with which they vehemently disagreed.”

Subtler forms of attack on judicial independence occur during the federal judicial appointment process, placing emphasis on politics rather than whether a nominee can be fair and independent, the report said.

“The ripple effect of an outcome-oriented appointment process tends to tar the entire judiciary,” the authors said.

Trump, with the help of the Republican-led Senate, has made good on his promise to reshape the courts with conservatives by appointing scores of federal judges.

Progressives complain Republicans are pushing ideological nominees through with inadequate vetting.

The bar association said lawyers could help the public recognize the difference between “healthy criticism of the judiciary” and “potentially dangerous attacks on judicial independence.”

The Boston Bar Association has 13,000 members from private law firms, businesses, government, legal services, courts, and law schools

To contact the reporter on this story: Aaron Nicodemus in Boston at anicodemus@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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