Judges On Twitter: Is This A Problem?

Judicial tweeting might be unusual; does that make it problematic?

There is something admittedly odd about judges on Twitter. The stereotypical judge is stuffy, technologically challenged, and light on personality. Twitter, in contrast, is informal, tech-driven, and brimming over with quirkiness and individuality.

There are, to be sure, virtues to the traditional vision of the judge (well, maybe not the lack of tech savvy, but the other attributes). Judges who are formal, dry, and tight-lipped off the bench convey a strong sense of objectivity to the public and to the litigants who appear before them. These judges might not have much personality, but presumably they don’t have personal biases that would interfere with the impartial administration of justice. You might not want to have a beer with such judges, but you would want them handling your case.

So judicial tweeting might be unusual. Does that make it problematic? Should we have new judicial ethics rules to rein in judges on social media?

One of the most active and popular judges on Twitter is Justice Don Willett of the Texas Supreme Court. If you don’t already follow him, you should (and can do so here).

Jesse Wegman of the New York Times editorial board uses Justice Willett and his Twitter feed as a vehicle for exploring the phenomenon of tweeting judges. Wegman writes:

Since joining Twitter in 2009, Justice Willett, who is 48, has written more than 12,800 tweets. That doesn’t put him anywhere near the most prolific Twitter users, but, by his own reckoning, it does make him “probably the most avid judicial tweeter in America — which is like being the tallest munchkin in Oz.”

His tweets are a mix of family outings (“Daddy-Daughter breakfast dates are THE BEST!”), oblique political commentary (“When it comes to legislating from the bench — I literally can’t even”), savvy cultural references and good-natured sports talk. His humor is sometimes corny and often funny. A tweet on Sept. 8 included a photo of two federal judges enduring oral argument, one half-asleep and the other apparently picking his nose, with the caption: “This is why some judges (not me) resist cameras in the courtroom.”

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(By the way, who are those judges? I believe they are Judge Stephen Reinhardt and Judge Marsha Berzon of the Ninth Circuit, but feel free to post in the comments or email me with other guesses.)

Is judicial tweeting a dangerous activity? Are judicial tweeters, as @DashRiptide tweeted, like the Flying Wallendas — highwire performers who don’t use a net? Justice Willett recognizes the perils:

In a phone interview, Justice Willett acknowledged the risks of high-speed, low-character-count dispatches. While on Twitter and Facebook, where he also maintains a public profile, he said he avoids partisan commentary and any legal issues that might come before him.

So why do it? What’s the upside? It’s pretty simple, actually:

The main reason for his online presence, he said, is a practical one: staying connected to voters. Texas state judges are elected, and State Supreme Court justices serve six-year terms. Justice Willett, who was first appointed to the court by Gov. Rick Perry in 2005, has won two elections since and will be on the ballot again in 2018. He calls it “political malpractice” not to make use of social media.

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Exactly. Judge Richard Paez of the Ninth Circuit and Justice Antonin Scalia of the Supreme Court might not agree on much, but check out their comments quoted in this recent piece by Adam Liptak, “Judges on the Campaign Trail”:

“A state sets itself on a collision course with the First Amendment when it chooses to popularly elect its judges but restricts a candidate’s campaign speech,” Judge Richard A. Paez wrote, citing Citizens United. “To the extent states wish to avoid a politicized judiciary,” he added, “they can choose to do so by not electing judges.”

…. “Maybe you shouldn’t have judicial elections,” [Justice Scalia] said during the argument of [Citizens United]. “It may be a very bad idea. But as long as you have it, I don’t see the interest in keeping the electorate from being informed.”

So if some states are going to elect their judges, then they better be prepared for a higher amount of extrajudicial speech, including tweeting. This could create issues: judges commenting (or appearing to comment) on issues that might come before them; judges making inappropriate jokes (e.g., racist jokes); or judges tweeting humorously right before or after hearing very serious cases (e.g., a death penalty case). But I’m not sure these are huge problems, as I told the Times:

David Lat, founder and managing editor of Above the Law, a website about the legal profession, said judges are like anybody else — they can be funny one minute and serious the next.

Mr. Lat said the judiciary as a whole benefits when judges are able to express themselves off the bench. “What are we more worried about?” he asked. “Someone who jokes around, or someone who is not following statutes or precedent because they want to be promoted?”

The biggest problems in judicial ethics are, as Chief Judge Alex Kozinski wrote in a Legal Affairs article back in 2005, “hidden from view…. The canons focus on the tensions and potential conflicts that are most easily detected by an outside observer.” So they obsess over things like recusing from cases involving companies in which you own stock (which, of course, you really ought to do). But they don’t catch subtler but perhaps more pernicious issues — like delegating too much work to your law clerks, or putting your personal ambitions ahead of administering justice (e.g., by not making rulings that, while correct, could scuttle your chances at elevation).

As I’ve written before, judges who blog or tweet help improve public understanding of the courts and increase the transparency and accountability of the judicial system. Judges just need to exercise sound judgment — which, of course, is what we pay them to do.

So I say: tweet away, Your Honors! You’ve already sacrificed financially to engage in public service; must you also sacrifice having a personality? I say no. Public attention and respect are forms of non-monetary compensation for judges to which they are fully entitled.

Average profits per partner at an Am Law 100 firm? Almost $1.5 million. Having people refer to you as “The Honorable”? Priceless.

Justice Willett [Twitter]
Some Judicial Opinions Require Only 140 Characters [New York Times]
Judges on the Campaign Trail [New York Times]
The Appearance of Propriety [Legal Affairs]
Err on the Side of Allowing Judicial Speech [Room for Debate / New York Times]