Judges Rail Against Social Media Mostly Because They’re Soft

It’s fair to say that nobody wants to see a world where judges run their mouths publicly the way some prominent White House residents might. But there is some sort of middle groun d between thumb diarrhea and keeping a hermetic seal on judicial personalities.

Indeed, with many judges around the country (unfortunately) elected to their positions, they can’t really afford to keep a lid on their public persona. And even if a judge isn’t subject to the voters, the general lack of judicial transparency contributes to the erosion of the public confidence in the courts.

On the other hand, the social media “friend” metric raises the specter of impropriety when your “friend” appears before you to argue a case. Worse, social media can encourage users to embrace more aggressive stances in an effort to “win” the space. This competitive effect can come around the other side and undermine judicial confidence when some judge starts dialing up the racism or sexism to impress their Federalist Society buddies.

Except… judges always had relationships with prominent members of the bar. The only difference today is that we can look it up. And social media didn’t invent the phenomenon of judges trafficking in racism and sexism on the internet. That it managed to make that more public seems to only be a good thing.

These sorts of complaints seem to have epitomized a recent gathering of sitting judges discussing social media.

Jurists on both panels agreed that the judiciary has a responsibility to educate the public on what their jobs are, because many people don’t understand what they do. But the judges shared concerns that social media are exposing them to heightened criticism that can escalate to death threats largely driven by misinformation.

Judge Fogel recalled that he received hundreds of letters and emails in 2006 when he found that California’s execution procedures were unconstitutionally harsh. He said that after he issued the decision he was afraid to leave his house for several days and that there was “certainly a level of trauma to work through.”

Doesn’t this undermine his whole point? He already received credible threats through the mail and email… so what exactly is the problem with social media? Someone might try to slide into his DMs rather than email him? Is that different? To some extent it’s “amplified” because his knuckledragging critic has posted the complaint publicly as opposed to a private letter, but how did this case generate hundreds of letters in the first place? That was traditional media quite effectively spreading the message around. There’s nothing really new here.

Judge Fogel said social media are particularly problematic for state and local judges who are subject to election, because there’s “this chatter going on,” and a lot of it is misinformed. He cited the public outcry that arose after Santa Clara County Superior Court Judge Aaron Persky sentenced former Stanford University swimmer Brock Turner to what was perceived as a light sentence in a high-profile sexual assault case.

Judge Fogel offered that he would have given Turner a more severe sentence, but he said Judge Persky did nothing legally wrong when he issued the sentence, which the probation officer recommended. Yet he lost his judicial seat and was recalled via a ballot initiative, which could encourage more recall bids among seated judges, experts say.

Put recall initiatives to one side — the matter of removing a judge mid-term is a whole other issue — but isn’t the whole Turner affair exactly why states elect judges in the first place? If the voters don’t appreciate his approach, then he should lose his job. And what, exactly, was social media’s role in this? That more people learned about his disproportionate approach to rape defendants based on race? That’s just a matter of informing voters. Is the argument that elected judges shouldn’t have to fear informed voters? None of this makes any sense!

But these complaints focus on social media generally — what about judges participating in social media themselves? Retired California Supreme Court Justice Carlos Roberto Moreno told judges “absolutely not.” Thankfully someone on stage was able to provide a counterpoint.

[Texas Supreme Court Justice Eva] Guzman, who faces reelection and who is the only jurist speaking at the event who actively tweets, defended the platform, explaining that social media are an important way that the public can see and engage with the court. However, [Justice] Guzman admitted she still is stressed by criticisms she’ll read on Twitter and she misses the days when newspapers were the only source of critiques.

“Now I wake up and I go to Twitter, because that’s the first thing I do in the morning, and there it is,” she said. “As a judge, that brings stress; I’m being criticized in Kentucky or wherever.”

Sure, it’s not great to have to face criticism. But when you’re making potentially life and death decisions, a little bit of criticism from Kentucky is going to come along with that — getting ahead of it by keeping things open is about all you can do.

Multiple judges also expressed concerns that the courts are becoming politically divided and they agreed that politics shouldn’t play a role in deciding the law. Judge [Charles] Breyer observed that over the past 20 years the judiciary has become more polarized and that is “very very dangerous.”

The judge said a polarized bench is more destructive on the rule of law than anything else could be.

And that’s really what this comes down to. It’s more politic to complain about new-fangled technology than have a frank discussion about how one side of the aisle has turned the judiciary into an ideology engine. It’s no accident that all of the “credible threats” the judges pin on social media involve death penalty protections and striking down the Muslim Ban.

So the judges are just going to complain about “social media” because they’re a little too soft to call out the literal elephant in the room.

Should Judges Tweet? ‘Absolutely Not,’ Retired Judge Warns [Law360]

Earlier: Judges On Twitter: Is This A Problem?