skepticlawyer

You don’t get many blogging judges. In fact, I can’t really imagine any of the judges of my acquaintance writing a blog, although I can imagine them reading legal blogs avidly.

However, I read this story of a US Federal Court judge in Massachusetts, Nancy Gertner, who has commenced blogging for Slate magazine. I would think it would be quite hard to be a blogging judge. For one thing, most of the judges I know wouldn’t have much free time to blog. For another thing, one would have to be very careful about what one said on the public record. Gertner concedes that the latter is an issue:

By her own admission, Gertner is limited in what she can write, unlike the law professors and writers who make up the blog’s other contributors. The Judicial Code of Conduct says a judge cannot make public statements that “might reasonably be expected to affect the outcome or impair the fairness” of cases pending in any federal court. She also avoids expressing views that could prompt litigants to ask her to disqualify herself, she said.

Still, Gertner says judges are too often silent on issues they should publicly address, such as how federal sentencing guidelines have led to what she and other jurists consider unreasonably long prison terms for nonviolent drug offenders. Judges must also do a better job explaining why the judicial code forbids them from discussing cases, she said, because their silence after controversial rulings is misread as arrogance or cowardice.

Ultimately, perhaps, a blogging judge is no different to a judge who gives a public address to an audience and then publishes his or her speech, or a judge who gives media releases to the press. Care would has to be exercised whatever one says in public, and blogging is no different.

I do think it is true that the public do not have a clear understanding of the role of the judiciary or the legal system in general. I would want to make it compulsory for some form of legal studies to be taught in high school so that people could understand where our laws come from, what the role of judges is, and why lawyers and judges behave as they do. I suppose that is part of my aim in being a legal blogger - to ventilate legal issues in a way which is (hopefully) accessible to the general public.

It’s also good for the public to know that judges are human, and all of the judges with whom I have worked are people of integrity who try their best to make the right decision. It’s actually a tremendously hard and stressful burden to decide the disputes of others, and a lonely one. Judges can’t discuss cases with others, and to a large degree, they cannot easily socialise with other lawyers because of the possibility of accusations of bias if their social acquaintances then appear before them. When the press or public attacks the judge, the judge cannot respond - the written reasons for judgment are the only words which the judge may give on the matter. It’s a heavy load.

I wonder if there will ever be any blogging judges in Australia? I certainly can’t imagine any of the current High Court having a blog! But perhaps it will happen one day: it would be interesting to read.