By now, everyone knows that Fox News contributor Andrew Napolitano was the source behind the recent White House claim that the British intelligence service, known as GCHQ, colluded with President Obama to conduct surveillance of Donald Trump in the midst of the 2016 campaign. The British government has rightly branded the assertion “nonsense,” saying it was “utterly ridiculous and should be ignored.” Napolitano’s scoop was also disavowed by the actual news branch of Fox News itself.
But even as the story is repeatedly debunked, some reporters and commentators continue to refer to its originator as “Judge Napolitano,” which only serves to lend some unwarranted credence to his false report.
It is true that Napolitano once served on the New Jersey Superior Court, but he resigned in 1995 and has not held judicial office since then. Nonetheless, he insists on being addressed as “Judge” and he is said to have demanded that his set on Fox News be designed to resemble a judge’s chambers. His website – which he calls JudgeNap.com – refers to him as “Judge Napolitano” in virtually every paragraph, as does his bio on the Fox News site.
The American Bar Association has cautioned against the exploitation of judicial titles by former judges, noting that it is wrong to use “Judge” or “The Honorable” in connection with law practice. In its Formal Opinion 95-391, the ABA Commission on Ethics and Professional Responsibility noted that continued “use of the title is misleading because it may be misunderstood by the public as suggesting some type of special influence” or “to create an unjustified expectation.” In fact, said the ABA, “there appears to be no reason for such use of the title other than to create such an expectation.”
Although the ABA opinion addressed only the use of the honorific in law practice, some states have gone further. The Ohio Rules of Professional Conduct, for example, provide that a former judge may only use the title or honorific if it is preceded by the word “retired” (or “former,” if the judge had been defeated for reelection), and the rule does not limit the restriction to law practice.
Sean Spicer, of course, cited “Judge Andrew Napolitano” when he first introduced the phony story at a press briefing. Fox News, InfoWars, the Daily Caller, and Breitbart, needless to say, always call him by the honorific. But CNN’s Wolf Blitzer also repeatedly refers to “Judge Napolitano” in his television reports, as do other stories on CNN.com. Mainstream news sources such as Business Insider, Real Clear Politics, the Huffington Post, the New York Daily News, and even the Washington Post have also referred to “Judge Napolitano,” and not in quotation marks. In fact, the British GCHQ called him “Judge Napolitano,” even as it called for his ridiculous remarks to be ignored.
Nothing can be done about Napolitano’s insistence on calling himself “judge,” but there is no reason for anyone else to go along with him. Fox News describes Napolitano as its “senior judicial analyst,” and the use of his former title is obviously for the purpose of enhancing his credibility.
To their credit, The New York Times, Politico, The Hill, and other outlets refer only to Mr. Napolitano or Andrew Napolitano. Like everyone else, Napolitano is entitled to his opinion, even when trafficking in absurd conspiracy theories, but we do not need to afford him the respect of an office that he no longer holds.
[Cross posted on Legal Ethics Forum]