The latest in the American Bar Association series on judicial independence looks at responding to attacks on judges — whether through television ads, social media posts, or otherwise. ABA President-elect Robert Carlson’s piece is here.
Hong Kong magistrate Bina Chainrai sentenced a local politician to three months in prison for hitting a pedestrian with a baton during pro-democracy protests in 2014. Dozens of supporters of the politician responded after the sentencing by hurling insults and racial epithets at Magistrate Chainrai. On Wednesday, several members of the Hong Kong bar condemned the slurs and pledged support for an independent judiciary.
The tone of the condemnations, however, struck me as a bit odd. One group stated, “Any attack on judges for reasons unconnected to their decisions, irrespective of their nationality, sex or other personal attributes that they possess, are wholly unacceptable and must be strongly condemned.” Another said that “personal attacks on a judge for reasons unrelated to the judgment is an attack on Hong Kong’s judicial independence.”
I have added emphasis to both statements to make the problem clear. Personal attacks on a judge are plainly unacceptable when they are based on the judge’s race, gender, nationality, and so on. But equally inappropriate–at least from the American point of view–are personal attacks on a judge based on the substance of the judge’s opinion. It is fine to challenge a judge’s reasoning, or suggest that the opinion will lead to bad policy, but ad hominem attacks are never acceptable.
The United States is struggling through its own crisis of civility these days. The President has issued crude tweets about judges on several occasions. Some self-styled progressives cheered when Justice Antonin Scalia died in 2016. And a small cadre of academics are even trying to suggest that basic civility is a racist construct.
It’s sad to see the same problem infecting Hong Kong. Norms of civility must go hand in hand with the rule of law, in every nation and in every era. Critique judicial decisions, yes, but leave the personal attacks at home.
Now the evidence of that desecration is starting to gush out. Toronto’s Globe and Mail has published a story on Venezuelan judge Ralenis Tovar, who fled to Canada with her family in July and is now claiming refugee status there. Judge Tovar alleges that as a judge in Caracas, she was forced to sign arrest warrants for Maduro’s political enemies. She further claims that the Maduro government tapped her phones and even attempted to kidnap her daughter from school.
From the Globe and Mail interview:
On her way home from work on Feb. 12, 2014, Ms. Tovar received a series of phone calls from an unknown number. Assuming it was an inmate, she didn’t answer. Then the president of Venezuela’s Supreme Court phoned and told her to pick up the calls. She did and was told to head back to the office.
Ms. Tovar said the court was surrounded by the National Guard and military intelligence officers when she arrived. She was greeted by four public prosecutors, who guarded her office’s door as she sat down.
She was given a folder with three arrest warrants inside. She said she didn’t recognize the first two names, but was shocked when she read the name on the third warrant: Leopoldo Lopez.
“I felt petrified because internally I knew what was the purpose of that warrant, which was to silence a political leader who was an obstacle for President Maduro,” Ms. Tovar said.
Given that it was 2 a.m., Ms. Tovar asked the prosecutors if she could review the warrant the next day. She said they laughed sarcastically and told her that if she didn’t sign it, she would end up like Maria Lourdes Afiuni, a Venezuelan judge who was allegedly raped in prison in 2010.
Terrified, Ms. Rovar signed Mr. Lopez’s arrest warrant.
Judicial independence and political freedom go hand in hand. When one erodes, the other cannot be far behind.
Kenya’s court-ordered repeat presidential election is scheduled for today, and the situation is a mess. Opposition leader Raila Odinga has asked his supporters to boycott the event, and there appears to be widespread confusion about how the process is supposed to work. The country’s electoral chief himself has stated that he has no faith that the country can deliver a free and fair election.
Within this maelstrom, there was a last-minute effort this week to ask the Kenyan Supreme Court to postpone the election. A hearing was apparently scheduled for Wednesday morning. But only two of the seven justices showed up for the hearing, making it impossible for the court to hear and render a decision. Among the missing justices was Philomena Mwilu, whose driver/bodyguard was shot and killed Tuesday night.
Early reports from today’s election have already centered on violence and clashes between police and protesters.
In the wake of the shooting of state judge Joseph Bruzzese on the steps of the Steubenville courthouse in August, the Ohio legislature has introduced a bipartisan bill to shield judges’ personal information from the public. The bill is still in its very early stages.
It is not hard to see why a bill like this might be necessary, but that realization is tinged with sadness. Judges are most effective when they are full members of the community, enjoying the same pleasures (and suffering the same indignities) as ordinary citizens. Grocery shopping, attending community events, waiting in line at the DMV, and similar activities foster an appreciation for everyday life that a judge needs to be an effective mediator, problem-solver, and voice for the community. When our judges are too cut off from the public, or exist in elite bubbles, they cannot have that effectiveness.
The benefits here of keeping a judge’s personal information from the public may well outweigh the costs. But we should be careful not to create a slippery slope in which the public and its judges lose critical opportunities for normal, everyday interaction.
These are tumultuous political times in Catalonia, which voted last week to declare independence from Spain. (The Spanish government argues that the vote, and any subsequent action, are illegal.) The independence declaration, which may come Tuesday, has spurred the regional judiciary in Barcelona to request extra police presence. Currently the court building is protected by police loyal to the Catalan government; the President of the High Judiciary of Catalonia is requesting further presence by the National Police force.
Mississippi state judge Carlos Moore has been the subject of several threatening social media posts, including one stating, “You’re a piece of **** I guess you need a bullet in the head.”
Police believe that the posts are related to Judge Moore’s decision to remove the Mississippi state flag from his courtroom. The state flag contains a miniaturized version of the Confederate flag in one corner.
The local police have issued arrest warrants for two men for cyberstalking threats.