James Robart, senior judge of the U.S. District Court for the Western District of Washington, discusses threats to judicial independence Thursday in Washington. (Photo: Diego M. Radzinschi /ALM)

Federal and state judges on Thursday criticized the disparagement of the judiciary by President Donald Trump and others and urged lawyers, journalists and the public to defend and better understand what they do.

Speaking at a National Judicial College forum in Washington, retired federal appeals judge Andre Davis said, “One cannot overstate the concern we should all have over what is going on in this country in respect to the undermining effects” of criticism of judges by Trump and others.

“One exhausts one's inventory of adjectives to describe the indecency, the corrosive effect of democratic values and principles by seeing what is going on in this country,” Davis said.

Davis said that when political leaders disobey the law and criticize the courts, those sentiments are “felt all the way down” throughout society, undermining trust in the courts and the law.

Referring specifically to Trump, the former judge on the U.S. Court of Appeals for the Fourth Circuit said, “This presidency has been brought to you by Barnum and Bailey. But the consequences are far more serious than we should allow to go unchecked.”

Other judges were less direct than Davis, who said his retirement last year resulted in “restoration of my First Amendment rights” to speak out. Davis is now serving as the Baltimore city solicitor.

But other judges on the panel, including federal district court judge James Robart of the Western District of Washington, made it clear they felt the disparagement of federal judges distorts and mischaracterizes the role of the judiciary.

In 2017, Robart was the target of Trump's tweets during litigation over the so-called travel ban. When Robart granted a temporary restraining order against the executive order imposing the ban, Trump called him a “so-called judge” and later said that if terrorists came into the United States, “blame it on the judge.”

Robart said Thursday he has no problem with the president or anyone else criticizing his decisions. But he added, “It's different when you say 'so-called judge,' because what happens next is that 'so-called judge' is interpreted as … you are not a judge, you have no authority to do this. You must be stopped.”

In addition to more than 100 death threats, Robart said he received many emails and other communications that indicated how little the public knows about the role of judges

Some said, “How can you defy the president?” Robart said. “That's what my job is—to be sure the Constitution is followed. If that means telling the president he is wrong, that is what I am supposed to do.”

Others, apparently unaware that federal judges are appointed for life, threatened that when Robart “runs for re-election,” they would vote against him. “People would say 'the president got 38 million votes, how many did you get?' My answer is 99,” Robart said, the number of votes the Senate cast in 2004 when he was confirmed to the bench.

State court elections from around the country have been under “systematic attack” from organizations using “dark money” and advancing business interests for more than a decade, Florida Supreme Court Justice Barbara Pariente said during Thursday's discussion.

“State courts need a lot of support,” Pariente said, adding that bar groups have not always stepped up to help.

Tani Cantil-Sakauye, Chief Justice of California, speaking on a panel Thursday in Washington. (Photo: Diego M. Radzinschi / ALM)

That lack of civic knowledge and what to do about it was another theme during the discussion Thursday. California Chief Justice Tani Cantil-Sakauye said judges, as well as lawyers and the media, need to be more proactive in spreading the word about the judiciary.

She spoke of a new k-12 program in California aimed at “making the judiciary a major part of civics education,” including participation by judges themselves in the curriculum.

Another way to combat political attacks on the judiciary, she said, was for judges to be more public and develop relationships with legislators, in part to inform debates over the judicial branch's budget, but also to ensure that “before they demean you, they know you.”

A perennial complaint was leveled at the news media for identifying the party of the president who appointed a judge. “You label us in a partisan way,” said retired federal judge Shira Scheindlin of the Southern District of New York. When doing their day-to-day work of decision-making, she said, “We don't think about the president who appointed us.”

Chief Justice John Roberts Jr. took a rare step recently in rebuking Trump, after the president said an “Obama judge” had ruled against the administration's effort to restrict asylum.

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”

 

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