Responding to Judicial Criticism.

• Author: Coker, Howard C.
• Position: Editorial

I am going to address judicial criticism--in particular, unjust criticism--and the legal profession's responsibility to respond to such criticism. But before I do, allow me to provide a few preliminary observations.

None of us are above criticism--personally or professionally. That doesn't mean we all do something "wrong," it just means we may do something that someone else doesn't like or doesn't agree with for whatever reason. Often, through public criticism, those who criticize another seek to attract attention to their personal cause--to manipulate a situation to their own advantage.

Criticism can be constructive. If the criticism highlights or uncovers a legitimate problem, then such criticism often provides the impetus to fix the problem. Criticism also can be pernicious and destructive. In a word, criticism can be "unjust." If it is misguided, unsubstantiated, exaggerated and unanswered, then such criticism unfairly demeans and destroys a person or institution by eroding respect, confidence and trust. It all happens incredibly quickly today. Sending and receiving messages occurs in nanoseconds--not minutes, hours or even days! The "words" and "images" are disseminated via Internet, mass media and even blast fax! Such communication occurs almost instantaneously. And through the wonders of modern technology, those messages can be reasonably targeted to specific groups and individuals.

Sometimes members of the judiciary or a judicial decision are the subject of such unjust criticism. Under those circumstances, such criticism must be confronted and answered.

Regarding unjust criticism of judges, The Florida Bar has had a policy (Standing Board Policies, series 1400) in effect for over 25 years:

Response Permitted: "The bar should respond publicly to attacks upon a judge only if the attack is: (1) an unwarranted or unjust attack on a judge in a pending case--regardless of the source of the attack if it was a public utterance. ("Unwarranted" or "unjust" is to be defined on a case-by-case basis.) (2) any "unwarranted" or "unjust" attack or series of attacks on a judge or court that may adversely affect the administration of justice."

Response Prohibited: "The bar should not respond to attacks upon a judge, even if unjust or unwarranted, where the attacks are made during judicial campaigns. This policy is based on the facts that a judge may respond to attacks made during judicial campaigns and that any response by the bar may be construed as...