Trump Loves ‘Fake Judges,’ Can’t Stand Real Judges (Perspective)

Editor’s Note: The author is the Louis Stein Chair at Fordham Law School, where he directs the Louis Stein Center for Law and Ethics.

President Trump seems to hold real judges in low regard. To be sure, he praised his own Supreme Court nominee, federal appeals judge Neil M. Gorsuch, as a man of “outstanding legal skills, a brilliant mind, tremendous discipline.” But the president has had much harsher words for some of Judge Gorsuch’s colleagues on the federal bench.

In February, after federal district judge James Robard of Washington suspended implementation of the president’s first travel ban, President Trump tweeted, “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!”

The comments recalled Mr. Trump’s earlier attack on Gonzalo Curiel, the federal district judge in California who presided over a fraud action against Trump University. In May 2016, while on the campaign trail, Mr. Trump attacked the judge as “very hostile” and implied that his adverse rulings were attributable to the judge’s Mexican ancestry.

In his confirmation testimony, Judge Gorsuch said he was “disheartened” by attacks on the judiciary. But President Trump was unchastened and unpersuaded, responding at a fund-raising dinner, “Somebody said I should not criticize judges. O.K. I’ll criticize judges.”

The president evidently has much fonder feelings toward fake judges. That’s true at least when it comes to two Fox News commentators who have continued holding themselves out as judges after leaving the state bench for greener pastures. The president recently thrust both into the national spotlight.

“Judge” Andrew Napolitano is the Fox commentator who claimed – without citing any evidence – that a British intelligence agency wiretapped Trump Towers at President Obama’s behest. That claim prompted President Trump’s controversial tweet that President Obama ordered his “‘wires tapped’ in Trump Tower just before the victory.” When intelligence officials repudiated the president’s wiretapping claim, the president cited Mr. Napolitano in his defense, offering, “All we did was quote a certain very talented legal mind, who was the one responsible for saying that on television.”

“Judge” Jeanine Pirro, the host of Fox’s “Justice With Judge Jeanine,” is the commentator to whom President Trump directed his Twitter followers after the House of Representatives failed to vote on proposed legislation to replace the Affordable Care Act. He tweeted, “Watch @JudgeJeanine on @FoxNews tonight at 9:00 P.M.” That night, Ms. Pirro called on Congressman Paul Ryan to step down as Speaker of the House, prompting speculation that the president was using her as a surrogate.

If Mr. Napolitano and Ms. Pirro were real judges, serving as TV commentators would violate a host of judicial ethics rules. For example, judges may not give out-of-court commentary on pending or impending judicial proceedings. (That’s the rule to which judicial nominees such as Judge Gorsuch refer when refusing to give views on past decisions or on how they might approach future cases.)

Judges must avoid political activity that may create the appearance of political bias or impropriety and, in particular, may not “publicly endorse or oppose a candidate for any public office.” (Though the rule does not apply to Supreme Court Justices, some of Justice Ginsburg’s critics cited it after she said in a July 2016 interview, to her later regret, “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president.”)

Unlike the federal judges targeted by the president, Mr. Napolitano and Ms. Pirro deserve to be called “so-called judges,” because they are not in fact judges. They are former or retired judges and that is not the same thing at all. It is one thing for their friends and associates to call them “judge” or “honorable” on social occasions as a matter of courtesy. But it is quite another thing for them to promote themselves professionally as “judges” and to allow their employer and publicists to do the same.

Bar associations warn former judges against calling themselves “judges” professionally. Why? Simply put, it’s misleading for them to do so. Lawyers are not allowed to enhance their prestige – to imply that they have the honesty, impartiality or trustworthiness associated with members of the judiciary – after they have left the bench for other professional pursuits.

An Ohio opinion, for example, soundly rejected the adage, “once a judge, always a judge.” It explained: “When a lawyer leaves judicial office, regardless of the reason . . . the lawyer is no longer a judge . . . [A] lawyer who formerly served as a judge should not use a judicial title while engaged in the practice of law. Such use of a judicial title is false and misleading . . . and constitutes conduct involving dishonesty, fraud, deceit, or misrepresentation.”

Typically, the ex-judge’s later professional pursuit is law practice. But the problem is the same if the new pursuit is television commentary. In the case of Mr. Napolitano and Ms. Pirro, one risk is that television viewers – President Trump among them – will be misled to believe that they have the special credibility or impartial judgment of a real judge. Another risk is that, seeing so-called “judges” take political positions and comment on current events, viewers will lose confidence in the impartiality of the real judiciary.

To preserve public confidence in judicial integrity, former judges such as Mr. Napolitano and Ms. Pirro should stop using a title that is no longer theirs.

President Trump, however, seems to be combating the problem from a different direction. If the public currently expects being a “judge” to mean something special, why not diminish public expectations? If the chief executive publicly attacks the judiciary, the title “judge” may cease to garner special respect – the public may simply equate judges with partisan politicians. Then no one will care if TV commentators call themselves “judges.”

But if that is the president’s aim, “disheartening” is hardly the word for it.

This column does not necessarily reflect the opinion of the editors at Big Law Business or its parent owners, Bloomberg BNA and Bloomberg LP.