When a U.S. district judge revoked bail for Paul Manafort, for allegedly tampering with witnesses, and sent him to jail to await trial, President Trump tweeted about his former campaign manager: “Wow, what a tough sentence for Paul Manafort. … Didn’t know Manafort was head of the Mob. What about Comey and Crooked Hillary and all of the others? Very unfair!”
And famously, albeit uncommonly for him, President Obama during his 2010 State of the Union address castigated the Supreme Court for its decision in Citizens United v. Federal Commission, while the justices, observing protocol, sat on their hands.
{mosads}In both of these instances, news media simply reported the facts. Reporters did not add their own ad hominem views about what the respective courts did in reaching their decisions.
Indeed, except on rare occasions, or when the editorial pages of the country’s largest newspapers call out judges for particular policy decisions, the news media rarely treat the federal courts the way that they do in typical reporting today on the other branches of government.
It’s something I’ve thought about, particularly after attending the Second Circuit Judicial Conference, whose programs for judges and practicing lawyers focused this year on “The Administrative State.” Perhaps to cajole or provoke introspection among the many attending judges, Josh Bolten, former chief of staff to President George W. Bush, observed that the federal judiciary gets better treatment by the Fourth Estate than the other two branches of government.
Isn’t it so? There are no leaked stories about appellate judges twisting their colleagues’ arms to get them to join their decisions. No adjective-overloaded comments when federal judges decide against an administration, except to note that a Democrat or Republican president appointed him/her. No TMI; no mention of a judge’s irascibility or punitive remarks when confronted with an annoying or aggressive litigator.
For some (including, I suspect, First Amendment enthusiasts), it may be a bad thing that federal judges don’t get the same scrutiny as do the other two branches. I sometimes wonder, why don’t they? After all, the courts are hardly the “least dangerous branch,” as Alexander Hamilton envisioned it. Hasn’t President Trump bragged about his circuit judge appointments and that of Justice Neil Gorsuch as being among his most important accomplishments, underscoring the extraordinary importance of the judiciary?
Critics of a system that keeps sunlight out of the ongoing evaluation process — none greater than former Seventh Circuit Judge Richard Posner, who perhaps has written more on the subject than anyone — might well argue that judges indeed should live under the same constant microscope as do the other branches. But do we really want judges describing exactly what influences come to bear on their thinking as a case moves along, aside from the questions they ask in open court or the decisions they reach along the way to the ultimate outcome in a case? Maybe, as a colleague of mine would argue, the lack of overly critical critique is proof that the judicial system is working well.
So do we adhere to tradition? Or, do we long for a new day, when judges’ bench conduct and ongoing rulings are picked apart by the press and public on a daily basis as a case proceeds, just as a president or legislature is attacked daily as their processes proceed?
Maybe it is that American society actually wants one branch of our federal government to be insulated from assault. Doesn’t society actually want one solitary place that remains above the sturm und drang of the daily fray of getting it right, raising it above the type of scrutiny that potentially could lead to judges bending — indeed, yielding — to the ill winds of public discourse and internal debate-divisiveness?
All this said, Mr. Bolten’s comment, while seemingly intended as humor, is probably true, and in part because of judges’ behavior. Judges don’t make silly public statements; they don’t allow themselves to be interviewed in a way to make them look bad; and concomitantly, they aren’t depicted, as are presidents and legislators, making ridiculously inconsistent, politically-driven comments — although state and local judges often are called out for their actions or comments in news stories.
Still, is the federal judiciary treated with respect because it is cloaked in a protocol of confidentiality that might make it less subject to daily scrutiny? Or is it treated better because it is indeed better — that is, more effective than the other two branches? The answer to that question might cause Hamilton to turn in his grave, wondering, “Least dangerous branch? How could I have said that?” — “dangerous” being intended here as a compliment.
Joel Cohen, a former state and federal prosecutor, practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. Cohen is an adjunct professor at Fordham Law School. He regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications, and is the author of “Blindfolds Off: Judges On How They Decide” (ABA Publishing, 2014).