THE "TACTIC" OF FIGHTING WITH JUDGES

When President Obama famously attacked the Supreme Court's decision in Citizens United in his 2010 State of the Union, he attacked the Court's majority and arguably the institution itself. He was, to me at least, way out of line. Not for the attack, but for the venue. Maybe he was afraid that the Court's decision letting corporations contribute unlimited funds to candidates would doom his chances of re-election, and therefore he overreacted. Or perhaps he thought the decision was just wrong, and he decided to use the ultimate bully pulpit - really use it! - to promote new legislation to overturn a Supreme Court decision (which, in the right forum, would be a president's perfect right).

Either way, especially law professor that he is, he recognized that the justices attending the State of the Union - some have since not come - would be forced to sit on their hands in sterile silence with the whole world watching. They could not react; they could not applaud; they could not walk out. Not only that; they would be constrained to remain silent even when the show was over. It is difficult for judges to fight back, and particularly difficult for them to respond to criticism through the media, no matter what they think of it. Their hands are essentially tied. And President Obama - who I generally support - knew it all too well. But this was politics; and the President knew he had a captive audience of members of both houses and a volunteer audience of some 45 million people around the world. Were he not looking to make sure he was heard - really heard - by our legislators, and the all-important public, President Obama could have saved his remarks for the Rose Garden, where only those few glued to presidential press releases would have heard them.

But, now, Donald J. Trump is also doing something to attack the judiciary - except in a different and more offensive way. Whether to win his "Trump University" case, or to advance his ball politically, or likely both, in his own inimical style, he too is engaged in political warfare - but in his case he is a private litigant using his unfettered access to the media. He has of course often used campaign speeches to make ad hominem assaults. But this time, Trump has gone to battle attacking a federal district judge sitting in San Diego, Gonzalo Curiel. Judge Curiel is presiding over a lawsuit alleging fraud claims against Trump University, and has decided - no reason to believe his decision is not on the merits, at least as he sees it - to unseal some 1,000 pages of the company's internal documents.

So what does Trump do in response? He publicly denounces the judge as "very hostile" - a "hater of Donald Trump." He bemoans that he's "getting railroaded" by a "rigged" legal system. Yes, this is a serious candidate for president who complains that the justice system is basically corrupt (i.e., "rigged") - because he received a decision not to his liking. He does not address the law; does not address the merits. No, in the face of a decision requiring him to turn over documents, he concludes the entire system is fixed.

Beyond that, Trump throws in that Curiel "happens to be" Mexican - implying to any voter listening that, going forward, maybe "Trump's wall" will help keep future Judge Curiels out! And he does this during a campaign speech in which he spends more than 10 minutes berating the decision and Judge Curiel personally. Not surprisingly, Trump - literally turning millennia of legal ethics and principles on their head - insists that Judge Curiel recuse himself because "ruling after ruling after ruling, negative, negative, negative." Sure, why not have a system where if a judge disagrees with the litigant (who has a megaphone unavailable to the judge), the litigant gets to demand the judge be removed from the case? Except that is not our system.

But here is the thing - just like the justices of the Supreme Court who had to sit silently by while the President very publicly attacked the Citizens United decision, Judge Curiel will have to sit on his hands. He cannot publicly speak out (other than through his opinions) on a case currently pending before him (or really any case). So the world gets to hear that Judge Curiel is a bad guy, a bad judge - one of the Mexicans that should be kept out of the country (as an aside, Judge Curiel was confirmed for the federal bench by voice vote). And the world never gets to hear Judge Curiel's take.

If a judge or judges are wrong or wrongheaded, they are not above the law, and not above attack. But there's a time and a place, and a manner to make that point. Judges, to my mind, don't warrant deference any more than members of the executive or the legislative bodies of government. But because, under the rules of ethics that guide judges, judges can't fight back in the same way that other public officials may, those who choose to attack their decisions - particularly if they are government officials or candidates with unconstrained access to the media - should have to do their fighting in court, where there are rules of decency and propriety.

Not only because attacking the judge using vituperative verbiage may not be tactically astute - meaning the hypothetical judge, objective as she may be, frankly may lose her objectivity - but because we who play in that arena live under a code of conduct that Trump, a non-lawyer, and maybe some of his supporters, may not appreciate.

But let's turn to a case which is currently pending (as opposed to Citizens United, which the President criticized only after the final court had ruled). The Justice Department is currently in a pitched battle with a federal district judge sitting in Brownsville, Texas. Either the Department or the judge is right - both can't be here. In a scathing ruling, Judge Andrew S. Hanen ordered government lawyers in 26 states involved in a case concerning President Obama's immigration orders to take ethics classes. In this pending case, the Justice Department is doing what it should be doing: it is trying its case in the courts, and not in the media. The judge's language is unconstrained. He alleges that lawyers before him were unseemly and unprofessional, that they committed misconduct and misrepresented certain facts. He goes so far as to write ". . . there are certain attorneys in the Justice Department who apparently have not received [the message to tell the truth], or more likely have decided they are above such trivial concepts."

The government, for its part, argued - in formal submissions to the court - that the sanctions ordered by Judge Hanen "far exceed the bounds of appropriate remedies for what this Court concluded were intentional misrepresentations, a conclusion that was reached without proper procedural protections and that lacks sufficient evidentiary support." It continued, "Compounding matters, the sanctions imposed by this Court exceed the scope of its authority and unjustifiably impose irreparable injury on the Department of Justice, the Department of Homeland Security (DHS), and thousands of innocent third parties," some of whom are children. The government said plainly that the judge was "wrong" and that he failed to provide "fair process" for the Justice Department and its attorneys.

Strong words on both sides. But the words are spoken (written, actually) in the context of court proceedings - where rules apply and the ultimate merits of the arguments can be determined on appeal. Sure, the information is in the public domain; but the Justice Department does not appear to be taking advantage of the fact that it theoretically could, e.g., call a news conference, speak on any one of several Sunday talk shows or give an interview, all to attack Judge Hanen and his ruling. No, the Department of Justice, headed by veteran prosecutor Loretta Lynch, is doing what it should do - it is arguing its case in the courts where it belongs.

And isn't that the point? If a litigant or litigator, government or not, wants to pick a fight, or respond to a fight picked by the judge (as does indeed happen often enough), there may be consequences. Judges are accustomed to battles waged with appropriate decorum; and virtually every one of them will tell you they can remain above the fray. But, let's face it, judges are human beings too, and - subject to appeals - they usually land the last blow!

But beyond that, the actions in how and in what venue to denounce the decision in Citizens United and to attack not only the decision but the judge, personally, in Trump University, were largely sui generis, and should remain so. Legal battles should be fought in the courts, or at the very least in a decorous manner. And one shouldn't have to be pro-Obama or pro-Trump (on anti either of them) or even a lawyer, to realize that.