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“Our Response Must Be Faster and Louder”


Vol. 107 No. 2 (2023) | Generative AI in the Courts | Download PDF Version of Article

Those who become judges don the robe expecting to work hard. They accept that the job comes with heavy caseloads, endless filings to read, and difficult decisions that must be made faster than they’d like. And they accept that there will always be parties and lawyers disappointed by the outcome of their cases.

They do not sign up to live as targets of threats and violence directed toward them and their families simply because they are doing a difficult job as best they can. But increasingly, this, too, is what judges encounter in the performance of their duties. The U.S. Marshals Service reports that the number of threats against federal judges rose from 926 in 2015 to over 4,000 in 2021.

This edition of Judicature features a chilling and tragic account of the nightmare that U.S. District Judge Esther Salas faced when a disgruntled lawyer who had appeared in her courtroom came to her home masquerading as a delivery person and shot and killed her son, Daniel, and wounded her husband. From this shattering loss, Judge Salas summoned the strength and courage to speak out about judge-directed threats and violence, and through her efforts Congress enacted the Daniel Anderl Judicial Security and Privacy Act, which was signed into law on Dec. 23, 2022.

For all its virtues, the Daniel Anderl Judicial Security and Privacy Act will not eliminate threats of violence against federal judges, and it doesn’t apply to state court judges who face similar threats. Too frequently, state and federal judges face highly publicized personal attacks against them stemming from the performance of their judicial duties, yet they are ethically prohibited from speaking out in their own defense. Following public criticism by a member of Congress on the impartiality of U.S. District Judge Tanya S. Chutkan, a Texas woman was charged with making death threats against her. And after a U.S. senator made a speech threatening Justices Brett Kavanaugh and Neil Gorsuch if they voted to repeal Roe v. Wade, a man armed with a loaded gun and a knife was arrested near Justice Kavanaugh’s home, telling police that he had come with the intent to kill a Supreme Court justice.

Verbal attacks against judges for the performance of their judicial duties are more than just irresponsible. Left unaddressed and uncorrected, they contribute to a climate of hostility and can expose judges and their families to real danger. They also erode public faith in the judiciary and undermine judicial independence and the rule of law by strengthening a broader narrative that the judiciary is another failing institution, and that judges are just politicians in robes.

The legal profession has a duty to respond publicly in defense of the judiciary when such criticisms and threats occur. Some organizations are beginning to step up. For example, the American Board of Trial Advocates (ABOTA) has adopted a Protocol for Responding to Unfair Criticism of Judges, which encourages lawyers to counter materially inaccurate information about a judge or the judicial process. Whether it is by writing op-eds, speaking to media, or correcting falsehoods as they are repeated in conversation or social media, we all must act — and now. The steady drumbeat of unjustified attacks against the judiciary and judges threatens the safety of judges and diminishes faith in the courts. Our response must be faster and louder.

Paul W. Grimm
David F. Levi Professor of the Practice of Law and Director, Bolch Judicial Institute