I have followed with some interest the libel suit instituted by a Massachusetts judge against the Boston Herald, which resulted in a $2 million verdict against the newspaper and was recently upheld. (NYTimes 5/8/07) I remember being outraged when I read that the judge, among other reported misconduct, had said about a rape victim: "She's 14. She got raped. Tell her to get over it." If true, it was inconceivable to me that such a person could be permitted to continue serving on the court. Apparently the jury found that it was not true and rendered its verdict accordingly.
What makes this case unusual, is that judges who are criticized rarely have the opportunity to respond in any fashion. Usually, they must remain silent no matter how unfair, unjust or untrue the accusations. I am totally in favor of robust analysis and criticism of judicial opinions and conduct, but the judge's inability to respond should place an enhanced burden on the critic to be accurate and fair.
I strongly believe this, not so much to protect the judge's sensibilities, but to maintain the public's confidence in the judiciary. I have spoken out for years about my concern that this constant barrage against judges, the mantra of "activist", "liberal", "soft-on-crime" and "legislating from the bench", all serve to erode the public's perception of and confidence in the judiciary. These labels which may produce some immediate political gain, in the long run will harm our judicial system if it causes the people to cease to believe in it.