By Chris Powell
According to the Connecticut Bar Association, criticism of the courts has gone too far, particularly criticism of the New York State court that convicted former President Donald J. Trump of 34 felony counts of falsifying business records.
In a letter sent this month to the association’s members, its top three officers, including its president, Maggie Castinado, complain that certain public officials — that is, Republicans — have called Trump’s trial a sham, a hoax, and rigged, the trial judge corrupt and unethical, and the jury partisan. Such criticism, the letter says, is “unsubstantiated and reckless” and can provoke violence against court officials and sow public distrust for the courts.
Yes, some criticism of Trump’s trial and conviction has been reckless. After all, this is the “age of rage” on both the political left and right. But much of the criticism of the Trump case also has been careful, expert, and well-explained, including criticism of the Democratic partisanship of the judge and prosecutor. According to many legal analysts, the charges were contrived, the trial lacked due process of law, and the verdict may be overturned on appeal.
Careful, expert, and well-explained criticism may “sow distrust” too. Indeed, sometimes distrust of the courts may be deserved.
“It is up to us, as lawyers, to defend the courts and our judges,” the bar association’s letter says piously, as if courts and judges are always right and bar association members don’t have a selfish interest in providing such defense. For to make their livings all bar association members rely on the favor of judges, and many members aspire to become judges themselves and avoid criticism.
Besides, the bar association is not the first place anyone should look for well-informed criticism of the courts generally or judges particularly. Fawning is much easier to find there.
Just a few days after the bar association’s letter was reported, Connecticut U.S. Sen. Chris Murphy contradicted it. In a television interview he said the U.S. Supreme Court “is becoming brazenly corrupt and brazenly political,” in part because flags associated with claims that the 2020 presidential election was stolen from Trump had been displayed at the homes of Justice Samuel Alito.
Of course six of the nine justices of the Supreme Court are Republican appointees, so the bar association may not mind that Murphy, a Democrat, is calling them corrupt and thus “sowing distrust.”
Even so, Murphy and nearly everyone else familiar with courts know that many judges on lower courts, most judges on appellate courts, and all judges on the U.S. Supreme Court are appointed not so much for their legal expertise as for their politics. This goes for Democratic appointees just as much as Republican appointees.
Such politics was never more brazen than in 2022 when President Biden, a Democrat, nominated Ketanji Brown Jackson to the Supreme Court, having pledged to nominate a Black woman since Black people are a crucial constituency of Biden’s party. Whereupon Jackson, to signal her support for the party’s transgenderism cult, told the Senate Judiciary Committee that because she wasn’t a biologist she didn’t know what a woman is.
The Senate went along with the charade and appointed Jackson on a largely party-line vote of 53-47.
All judges — even those chosen entirely for their legal expertise — have their politics in the broadest sense, a world view, if not necessarily partisan politics. So the highest quality of judges may be their capacity for impartiality, which may sometimes be tested since, as Justice Felix Frankfurter wrote with charming understatement, “The safeguards of liberty have frequently been forged in controversies involving not very nice people.”
Right now the country seems full of not very nice people, two of whom are running for president, and it may be harder than ever for judges and prosecutors to put aside their political biases as they do their jobs. When they fail, to point it out, even intemperately, may not be the sedition feared by the Connecticut Bar Association but respect for due process.
Chris Powell has written about Connecticut government and politics for many years. (CPowell@cox.net)
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Chris Powell column 