Attacks on judicial independence have been front and center in the news lately. They seem to reflect a misunderstanding of the importance of an independent judiciary by some members the media and the general public.  Lawyers need to do more to get the word out.

HOUSE OF REPRESENTATIVES OR HOUSE OF PRAYER?

In the wake of his decision banning organized, sectarian prayer in the Indiana House of Representatives, Hinrichs v. Bosma, No. 1:05-cv-813 (November 30, 2005), Judge David F. Hamilton, U.S. District Court for the Southern District of Indiana, has endured a firestorm of harsh personal criticism.  The underlying legal issue in the Hinrichs case is provocative.  Reasonable people can differ about whether the conduct at issue, as Judge Hamilton held, violates the Establishment Clause of the First Amendment.  That question will be decided through the appeal process.  But even if Judge Hamilton’s decision is affirmed on appeal, the beauty of our system of government is that people will still be free to criticize the result.  The torrent of criticism highlights lawyers’ duties under the Rules of Professional Conduct to not only refrain from attacks on judges, but also to educate the public about the importance of an independent judiciary and defend judges against unjust attacks.

What is troubling about the Hinrichs case is the personal nature of the attacks on a judicial officer who, right or wrong on the merits, acted in good faith and in reliance on long-standing Supreme Court precedent to discharge his oath to uphold the Constitution and laws of the United States.  Judge Hamilton has been unfairly excoriated as anti-religion, and it has been widely suggested that the legislature should simply defy the federal court order.

To cite just one reaction to Judge Hamilton’s ruling from a public official, one Indiana legislator, Rep. B. Patrick Bauer, was quoted as saying, “I see where religions were forbidden in other countries. In communist countries. In totalitarian countries. I think this smacks of that.” The blogosphere took note, referring to  Judge Hamilton’s ruling as “sinister,” “pernicious,” and “black-robed tyranny,” to note but a few examples.

LEGISLATIVE BACKLASH

Perhaps the culmination of these attacks—not so much for Judge Hamilton personally as for the entire federal judiciary—was the introduction of a bill in Congress, H.R. 4776, by a member of Indiana’s congressional delegation to forbid the federal courts “to hear or decide any question pertaining to the interpretation or the validity, under the Constitution, of the content of speech of any member of a State legislative body or any individual invited by a State legislative body to speak before that body, when such speech occurs during the legislative session of that body.”

Talk about throwing the baby out with the bathwater! Whether Congress has the constitutional power to limit the jurisdiction of the federal courts in the manner of the proposed bill is an interesting question.  Article III of the Constitution provides:  “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States . . . .”  U.S. Const. art. III, § 2, cl. 1.  But as a matter of sound public policy, the idea of stripping the judiciary of an entire class of cases because the legislative branch does not like the result of a particular case should make the blood of all lawyers run cold.

REFRAINING FROM UNFOUNDED JUDICIAL ATTACKS

For the most part, members of the bar enjoy the same rights as other citizens to criticize judicial decisions, but the Rules of Professional Conduct establish limits. The Rules are not especially demanding of lawyers in compelling respect for the judiciary.  Rule 8.2(a) provides that, “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge . . . .”  This does not seem too much to ask.

Indiana has a strong tradition of enforcing this rule against unfounded attacks on judicial integrity, most recently and prominently, in Matter of Wilkins, 777 N.E.2d 714 (Ind. 2002); 780 N.E.2d 842 (Ind. 2003) (Rucker, J., recusing); 782 N.E.2d 985 (Ind. 2003) (rehearing granted on sanction only), cert. denied, 540 U.S. 813 (2003). In Wilkins, a lawyer was reprimanded for characterizing the opinion of the Court of Appeals in a brief supporting a transfer petition to the Indiana Supreme Court as, “so factually and legally inaccurate that one is left to wonder whether the Court of Appeals was determined to find for [the appellee], and then said whatever was necessary to reach that conclusion (regardless of whether the facts or the law supported its decision).” Wilkins, 777 N.E.2d at 715-16.

Lawyers have also been disciplined for groundlessly accusing judges of sexual or racial discrimination or personal animus, Matter of Crenshaw, 815 N.E.2d 1013 (Ind. 2004) and Matter of Atanga, 636 N.E.2d 1253 (Ind. 1994), and for telling a court that its own decision was “a bad lawyer joke.” Matter of McClellan, 754 N.E.2d 500 (Ind. 2001).  Unfair, personal attacks on a judge were the subject of discipline in Matter of Reed, 716 N.E.2d 426 (Ind. 1999).  As were unfounded accusations of serious criminal conduct by a judge. Matter of Garringer, 626 N.E.2d 809 (Ind. 1994).

The balance between fair lawyer criticism of the judiciary and regulating frivolous attacks on judicial integrity is not necessarily an easy one to strike, as can be seen from the two dissents in Wilkins.  777 N.E. 2d at 719 (Sullivan, J., dissenting); Id. at 719 (Boehm, J., dissenting).  The comments to Rule 8.2 make a decent effort, though.  Comment [1] states: “Assessments by lawyers are relied on in evaluating the professional or personal fitness of persons being considered for election or appointment to judicial office and to public legal offices . . . .  Expressing honest and candid opinions on such matters contributes to improving the administration of justice.  Conversely, false statements by a lawyer can unfairly undermine public confidence in the administration of justice.”

LAWYERS NEED TO DO MORE

It should not be enough for lawyers to refrain from groundless or false attacks on judicial officers. We all have a responsibility to do more.  The Preamble to the Rules of Professional Conduct reminds us that, “a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”  More to the point, Comment [3] to Rule 8.2 asks lawyers to step forward and defend the judiciary from unfair attacks: “To maintain the fair and independent administration of justice, lawyers are encouraged to continue traditional efforts to defend judges and courts unjustly criticized.”

It can be difficult for judges to respond to unfair criticism. Sometimes they are ethically prohibited from doing so.  See, e.g., Indiana Code of Judicial Conduct, Canon 3(B)(10).  Other times, judges simply find it unseemly to have to defend doing their jobs.

The organized bar has an honorable history of speaking out against inappropriate judicial attacks. Both the Indiana State and Indianapolis Bar Associations have long-standing policies calling for prompt responses to specific instances of unjust judicial criticism.  If your local bar association doesn’t have a similar policy, consider developing one.

More recently, the Indiana State Bar Association Board of Governors and the Indianapolis Bar Association Board of Managers each adopted resolutions opposing legislative intrusions into judicial independence.

These are commendable initiatives, but individual lawyers should not abdicate to the organized bar their responsibility for speaking out against unfair criticism of the judiciary and shortsighted attacks on judicial independence. We all have a stake in preserving the crucial, but fragile, authority of the judicial branch of government to decide cases on their factual and legal merits, free from outside pressures of public opinion and political expediency.

Make up your own minds about the proper balance between the Free Exercise and Establishment Clauses of the First Amendment, but all of us should step up and be counted on the side of judicial independence.