Public Clamor and Criticism

Public Clamor and Criticism

Rule 2.4(A) of the Model Code of Judicial Conduct is a single sentence: "A judge shall not be swayed by public clamor or fear of criticism."¹ It names two sources of pressure. Public clamor comes from outside the judge: a media campaign, an organized protest, the mood of a community. Fear of criticism is anticipatory, a worry about what someone will say once a ruling issues. The verb carries the rule. To be swayed is to be moved, so the rule asks whether clamor or fear caused the outcome. A judge can violate it with no crowd in sight, simply by deciding a motion out of private dread of tomorrow's headline.

Because the rule turns on causation, hearing criticism is not a violation. A judge who reads an editorial attacking a ruling, or who knows that the next ruling will be unpopular, has not been swayed by that knowledge alone. The rule forbids letting the reaction supply the reason for the decision. A ruling that follows the facts and the law complies whether the public cheers or jeers it, and a ruling that follows the public mood does not, however popular it turns out to be. Reconsidering an earlier ruling after criticism is likewise not forbidden in itself. What matters is whether the merits or the criticism drove the change.

Pressure of this kind can reach outcomes. One study of sentencing in criminal cases found that, all else equal, the sentence imposed by a judge whose election is imminent is likely to run about three to four and a quarter months longer than the sentence of a judge who was recently elected or retained.² The pattern is consistent with electoral anxiety working its way into sentencing decisions. It describes judges and cases in the aggregate, though, and it cannot tell you why any particular judge imposed any particular sentence. That limit matters again below.

The hard cases arise when a judge changes course after criticism and says the criticism played no part. The controversy over Judge Baer's ruling is the standard example. On the government's motion for reconsideration, Baer reversed his ruling, but he took pains then, and later, to emphasize that he had not succumbed to political pressure and had based the reversal on the merits of the motion.³

Public debate over the episode centered less on the judge than on Dole, Gingrich, and Clinton. The question was whether their conduct unfairly threatened Judge Baer's independence.⁴ That focus shows why the rule covers fear of criticism as well as clamor: pressure can come from powerful officials as easily as from a crowd. The case also illustrates how difficult it is to distinguish proper from improper influences when applying Rule 2.4.⁵ Nothing in the account establishes that Baer violated the rule, and a reversal on reconsideration is an ordinary judicial act. Yet reversing after a storm of criticism is also exactly what capitulation would look like. The difference lies in why the judge changed course, and that reason sits inside the judge.

The difficulty belongs to the rule itself. Judges are unlikely to concede that a ruling was the product of forbidden influence, both because such influences can operate subconsciously and because judges understand that those influences are improper. Without a concession there may be suspicion of inappropriate influence, but there will not be proof.⁶

Discipline therefore succeeds where the record itself exposes the influence. When Rule 2.4 has been brought to bear in disciplinary proceedings, evidence of improper influence is often a matter of record. In Inquiry concerning a Judge, Gridley, the Florida Supreme Court reprimanded a judge who converted a criminal defendant's sentence from first to second degree murder after he struck up a personal correspondence with the defendant, and with others associated with the defendant, post-conviction.⁷ That case concerned a personal relationship rather than public pressure, but it shows what proof of improper influence looks like.