January 19, 2007
Judge Spats: The Role of Blogs
Judges on the same bench routinely disagree and sometimes those disagreements turn personal. The judges own stage in their public image (read legitimacy) --- judges are measured, thoughtful, and respectful-- usually restrains judges from taking their personal conflict public. We hear about personal conflicts, if at all, through leaks from friends or clerks long after the fact. Sharp exchanges on the bench in oral arguments are 1) a surprise, 2) judged harshly, and 3) assumed to be "purely professional" (the judges disagreements are reflections of personal animosity). Disagreement in private, in conferences and correspondence about cases, are, historically, confidential. But judges are human. Within the last month there have been two illustrations of courts going public with personal spats. The D.C. Circuit Court had a public spat over the acceptance of a amicus brief from retired judges (a split panel held that retired judges could not feature the use of the title "judge" in court proceedings). I have mentioned it in an earlier blog. Judges from the DC Circuit are still writing letters to the editor on the issue (a recent defense by a spurned brief writer noted that they used their titles as Judge on in the "bio" materials and in the body of the brief and that other judges had submitted similar briefs that had been accepted.)
The Michigan Supreme Court now has been featured in the New York Times in a public spat over a disciplinary action against lawyer who was also an unsuccessful candidate for governor, Geoffrey Fieger. (Adam Liptak, Unfettered Debate Takes Unflattering Turn in Michigan Supreme Court.") [See also "It's Getting Ugly on the Michigan Bench," from CNN.com]. The defendant was charged with, get this, making negative comments about sitting judges. The successfully candidate for governor had picked four judges on the bench and several of the judges had made negative public comments about the loser/defendant during the political contest. The Michigan Supreme Court judges had a very rough conference on the case and one of the judges went public, on her blog, with the comments of one of her colleagues (he called her, among other things, "a child engaging in a tantrum"). Rosie O'Donnell and Donald Trump move over..
The court, characteristically, met to pass a new rule, on a 4 to 3 vote, prohibiting any member of the court from revealing the contents of inside judicial communications on pending cases. The aggrieved judge called the rule a "gag order" and, characteristically, labeled it as unconstitutional. She has started a blog, for pete's sake. Next up -- a rule against judges having blogs.
Fieger has sued the Michigan court in federal court. Law professors and other judges have, characteristically, clucked their tongues, bemoaned the lack of decorum and supported the need for confidentially.
I, on the other hand, welcome and laugh and enjoy the public spectacle. Increasing publicity about courts is and will be inevitable. Judges had better get used to it. Moreover, it is healthy. Illusions about courts will be more difficult to sustain, judges will suffer public disgrace for poor behavior and be induced to behave better and we will all be better off for it.
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