In the wake of a high-profile scandal in which prosecutors in a major corruption case exchanged private text messages with a judge about its planned strategy, Israel’s Supreme Court has announced new rules to prevent further one-sided communications.
Under the new rules all contact between the judge and the investigative and prosecuting bodies will only be made during court hearings. Aside from in the courtroom, no direct requests are to be made of judges, but rather are to be filled through the court administration.
This makes a great deal of sense, and gives the court system a chance to rebuild whatever public legitimacy it has lost from the scandal.
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.
Judicial authorities in the Maldives have suspended the licenses of 56 attorneys who signed a petition accusing the courts up not upholding the rule of law. The attorneys charged the courts with hasty, closed-door decisions in cases involving opposition officials in the government, among other accusations of politicization.
The 56 suspended lawyers amount to more than one-third of all attorneys on the island nation.
Much more detail here.
Professor James Duane has a very short and interesting article up on SSRN about the potential perils of correcting a judge’s mispronunciation during oral argument. He focuses on one recent case where an excellent young lawyer twice corrected a Supreme Court Justice’s mangled pronunciation of “antecedent” simply by later pronouncing it correctly. Duane thinks this was the wrong approach, and counsels lawyers to either mispronounce the word in the same way going forward, or avoid using the mispronounced word altogether for the remainder of the argument.
That seems like odd advice to me. Judges are human beings, and they are not immune from basic mistakes any more than the rest of us.* Were I in the situation of that young advocate, I would be inclined just to use the word correctly the next time. Mimicking the error would seem to call even greater attention to it.
What do readers think? Feel free to weigh in.
* Some judges are more comfortable admitting mild linguistic ignorance (Chief Justice Roberts’ interruption a few years back to ask about the meaning of “orthogonal” comes to mind). But accepting that you mispronounced a word, and that it’s no big deal, seems to me a basic example of judicial humility.