Are judges who make political posts on social media fair game?

Partisan hacks beware.

No one wants a judge who is a partisan hack.

The Appeal by John Grisham paints an unflattering portrait of the way appellate judges are selected and how they decide. It makes you think about what you want in a judge.

The questions I wonder about are: what should judges post on social media? Or should they post anything at all? If they do make political posts, are they subject to the same kind of scrutiny (attacks and otherwise) as any other political candidate?

Judges are people. Although black robes are meant to convey majesty, that is more about the court and the power of the court as an institution. The judge acts an agent of that institution and the embodiment of it. Fortunately, I have had many positive experiences with judges throughout my career.

It's a tough job to be a judge. It requires many admirable qualities such as intellect, compassion, judgment (sounds obvious—but you’d be surprised), a calm demeanor, attention to detail, objectivity, magnanimity, thick skin, and mental endurance. There are many others that I am sure I will think of later.

One of the best jobs I ever had—an internship, really—was with a judge after my first year of law school. I learned more from this judge than any law professor. Let’s face it: *most* law professors don’t know a damn thing!  Speaking of hacks…but I digress.

At this judicial internship I met lawyers, got to know people around the courthouse, and, most importantly, I learned how to conduct myself professionally while still being a zealous advocate. While the judge was of the opposite political party, we agreed on more than we disagreed. He's since retired, but he is one of the finest men I’ve met. And he wasn’t political or at least he hid it very well.

But that was a different era, or, rather, it appeared to be. It makes me feel old to say that. This was true even though judicial races were technically partisan at that time in North Carolina. But they weren’t political, and they predated social media.

After twenty years we are back to partisan elections.

Consequently, judicial races have become both partisan and political. And social media now exists in a way it didn’t in 2004.

It raises many questions some of which I will try and tackle here in short shrift, although I will focus primarily on judges and social media.

Are elected judges fair game?

Some states elect their judges. Some states appoint their judges. In North Carolina, we elect judges. It used to be non-partisan, which was a little silly. You knew where everyone stood, but it allowed judges to have at least a little removal from politics. Not anymore.

The North Carolina General Assembly made the elections partisan after about two decades of not listing the judge’s party. This raises all kinds of questions about judges who hold certain political philosophies and how they might rule especially when social media is thrown into the mix.

Let me give you a few stereotypical examples.

Republican judges come from the DA’s office. Do you want a judge who worked for the DA’s office if you are a criminal defense lawyer? Probably not. I suppose it depends on the judge. Conversely, if you are a victim of crime, do you want a judge who was a long-time criminal defense lawyer and a Democrat?

And what if you are a plaintiff’s attorney in a personal injury lawsuit, and your case goes in front of a Republican judge who worked in insurance defense his or her whole career? You may not want this judge.

These are stereotypes, but you get the point.

The two-party divide has always existed, so, in theory, this problem has always been present. You simply learned how judges leaned and you “judge shopped” accordingly. But social media has complicated that. Possibly, it’s made it easier.

Lately I’ve noticed judges showing up in pictures on social media at political events for North Carolina Court of Appeals and North Carolina Supreme Court candidates and incumbents. In theory, these appellate courts could rule on opinions written by the judges attending their events and contributing to their campaigns.

Is it better to know those things? Or is it worse?

Appearing in pictures with political candidates.

It raises the question: is it proper for a judge to appear on social media in these kinds of pictures? What about appearing in pictures with candidates for various offices? Or pictures with children of major politicians? For example, what if your judge appeared with Donald Trump, Jr. in a picture at a political event? How would you feel about that judge? I suppose it depends on how you want the judge to rule, doesn’t it? If you were a Democrat, not so good. How would you feel if your judge appeared with Hunter Biden? If you were a Republican, not so good.

I don’t have the answers, but I do believe:

1. Judges should keep their social media to a minimum and keep their points of view offline. I suppose the counter argument for that is it is better to see how they really think and vote accordingly;

2. Judges should not be photographed with appellate judges who may rule on their cases;

3. Judges should not voice hyper-partisan opinions online; and

4. Judges should not voice strong opinions online about issues that may give people pause as to the judge’s judgment, for lack of a better word.

One thing that troubles me is how so many judges are drawn from the DA’s office. How is a judge who comes from the DA’s office qualified to hear anything but criminal cases? Wouldn’t you want a judge who understood criminal law and civil law? Those are questions for another day.

Note: judges probably hear more criminal and traffic cases than any other kind of case, so having someone from the DA’s office is not a bad idea in this regard. And they know how the courthouse functions. That’s in favor of former DAs being judges. There are many fine judges who came directly from the DA’s office as well.

I’m not sure what judges should do about social media, but I do believe they should at least appear to not be a partisan hack. Right now, some try harder than others. 

The same as any other political candidate?

But it raises the question: if judges conduct themselves as political animals, can you go after them like any other political candidate? I think you can. And you should. 

This is a vast departure from the way local judicial races have been conducted, but times have changed. The veneer of unbiased judges has been stripped away. If judges are going to present themselves on social media as favoring one side or another, then they need to be open to greater scrutiny. Even at the local level.

I am very partisan. I believe what I believe, and I expect others to have varying viewpoints. That’s a wonderful thing. I welcome a good debate, but we need to be able to subject judicial candidates to the same scrutiny as other political candidates. This is especially true when the judge makes herself or himself a political candidate by their posts on social media.

Happy hunting, friends.

Please feel free to reach out to me at michael@wellslaw.us or call me at 336-793-1989.

Legal Disclaimer:

This is an advertisement.

This publication is intended as a forum for information about the law and other topics of interest to the author and his readers, but is not intended to provide legal advice or opinion, or to establish an attorney-client relationship. No attorney-client relationship is intended to be formed, nor is it formed. The author’s statements are not attributable to Michael Wells, Wells Law PLLC, or any other person or entity not specified herein. The author’s statements may fail to represent the law or other topics of interest precisely or broadly.

You are receiving this email because you've shared your email address with me at one time or another.