Use of Titles by Retired Judges

My earlier post on Andrew Napolitano got mixed responses, with some readers (and tweeters) comparing his use of “Judge” to the fairly common practice of using honorifics for former senators, governors, and other office holders.  Let me suggest that there is a difference, depending on the nature of the former office.  Everyone understands that governors and senators have always been political figures, so there is no exploitation when they use their former titles for political purposes.  Nobody expects Pres. Bill Clinton to be anything other than a partisan Democrat.

Judges, on the other hand, are supposed to be objective and politically neutral.  (Yes, I know that is not strictly true, but many citizens still idealize judges and certainly respect them more than mere politicians.)  Consequently, the use of a formerly-held judicial honorific can appear to lend greater weight to a political or legal argument, even decades after the individual has left the bench.  Even in situations where individuals are entitled to call themselves whatever they want, I think that media organizations, as a matter of discretion, ought to omit judicial honorifics for former judges.  That is the practice of The New York Times, The Hill, and other organizations, which use honorifics sparingly in all circumstances.

But if the Napolitano situation isn’t persuasive, let me raise another example.

As many readers know, Graham Spanier, the former president of Penn State University, was convicted in March of misdemeanor child endangerment, growing out of the Jerry Sandusky child abuse scandal.  Spanier had earlier been forced out of office following an investigation led by former federal judge and FBI director Louis Freeh.  In the aftermath of the Spanier conviction, Freeh issued a written statement condemning Spanier (who had yet to be sentenced and announced that he planned to appeal) and two co-defendants who pled guilty.  He also called for the resignation of current Penn State president Eric Barron and two members of the board of trustees.  The caption on the statement reads:

FOR IMMEDIATE RELEASE

March 24, 2017

STATEMENT OF JUDGE LOUIS FREEH UPON THE JURY CONVICTION OF FORMER PSU PRESIDENT SPANIER FOR CHILD ENDANGERMENT

I have no quarrel with Freeh’s decision to make post-conviction comments on the Spanier case – which I have not followed – but I think he is exploiting his former office by continuing to call himself “Judge,” the purpose of which is obviously to add greater weight to his opinion, including the defense of his own investigation:

These very sad criminal convictions also completely confirm and verify all the findings and facts which my team and I established after an exhaustive investigation commissioned by the then-PSU board.

If you don’t think it was wrong to issue this statement as “Judge Louis Freeh,” imagine that he had instead issued it as “FBI Director Freeh,” without indicating that he no longer holds the office.  And if you agree that the latter would have been wrong, why would the judicial honorific be acceptable?

The Freeh statement was reported by the Chronicle of Higher Education, the AP and the local press in State College, none of which referred to him as “Judge.” They did describe him as “former FBI director,” although only once in each article, which I think is appropriate.

I am not making a blanket argument against the use of former titles, but I do think that judges hold a unique position in our society.  Although they may use their honorifics for purposes other than the practice of law, I suggest that reporters and commentators ought to follow the practice of the New York Times and leave judicial titles out of it.

Comments

[[M][a][c][K]]

There has been litigation in both the UK and Ireland over an old rule that prohibits a judge from appearing in any court at the level he/she was at when they retired. I think the Irish case involved a judge of the Central Criminal Court, which is a branch of the High Court that takes serious criminal cases - and thus, though a court of first instance, at a higher level than the District Court or Circuit Court. The apparent reason was that it was perceived that someone's status as a former judge could influence more junior judges and courts.

My understanding in the England, Wales, Scotland and Ireland is that a former judge who returns to legal practice should not use the title of 'judge' but a retired judge who does not practice law can continue to use the title. The concern is that again it may give the judge too much credibility and unduly sway clients and the court (though one could then ask about the whole system of juniors (junior counsel) and Queens Counsel/Senior Counsel.)

[anymouse]

Get rid of all titles for former judges and political office holders.

[Ian Holloway]

This will sound archaic, but in the Commonwealth (or, rather, in the Queen's Commonwealth Realms where they still have Queen's Counsel), a retired judge who returns to practice has his or her QC title automatically restored. Whilst on the Bench, the appointment as a QC is suspended, for the obvious reason that one can't be both one of the Queen's judges and one of her counsel. Socially, the convention is that judges won't even hang their QC Letters patent (which tend to look pretty snazzy) in their office.

In our corner of the common law world, a judge who returned to active practice would never in a million years presume to call him or herself "judge" - for the reasons you posit, Steve. As a dean, I might in a social setting call them "Judge", but that's only socially.

[Deep State Special Legal Counsel]

Here is the problem or the root of all evil here. Somebody paid big money to "Judge" Freeh/Napolitano for "legal" consulting and they wanted to get a huge bank for their buck. It's the same scenario when a corporate wrong doer retains a former high profile AUSA or the man himself to "investigate" or come up with findings "so it will never happen again..." Read: So we can get back to making and selling plastic shit at Walmart. It's all about money.

[twbb]

DSSLC, I don't think Napolitano is driven solely by money, I think he's also driven by getting his face in front of the TV, and being a total conspiracy-believing wingnut.

[Deep State Special Legal Counsel]

twbb,

Bozo the Clown "got his face in front of the TV" a lot too! It's money. Trust me. Why does Uber need AG Holder to "investigate" claims of sexual harassment? You and I could do the same for a few hundred dollars and come up with a two page memo to file. They are using him as a salve to say to the Liberal Yuppie Hipsters "we are soooooooooooooooooooo sorry..." Now, get back in the OUR car with your Lattes. Everything is Okay now. We got a good guy to investigate this. Same thing with these former "famous" Judges and whoever they "investigate."

[Bernie Burk]

Steve, thanks for continuing to explore this surprisingly nuanced and difficult question.

Consider: Kenesaw Mountain Landis, the first Commissioner of Baseball, was universally referred to as "The Judge" or "Judge Landis" long after he left the bench to serve as Commissioner (though I believe he was appointed and served as Commissioner for a year or two while still a sitting federal judge). I'm sure other readers can come up with plenty of other examples of judges who left the bench and assumed other prominent roles in public life while continuing to use (or allow others to apply) the title of their former office. Suffice for the moment to say that historical practice on closer examination will probably turn out to be both varied and inconsistent.

So when SHOULD continued use of a judicial title after leaving the bench be OK? Steve, you rely on an ABA Ethics Opinion to suggest that it might be OK "for purposes other than in the practice of law," but that doesn't really cover the whole canvas. (The ethics opinion is, by its nature, limited to defining things that licensed lawyers can't do, so it can't touch someone who goes inactive or resigns from the Bar. And this particular ethics opinion is limited by its terms to what former judges can do in any law practice they resume after leaving the bench. There are, of course, ethical rules that govern what lawyers do even when they're not acting as lawyers or practicing law, but this opinion doesn't articulate anything that broad.) For example, your post was prompted by what Andrew Napolitano was doing on Fox News, and whatever that was, it wasn't practicing law.

Steve, you also suggest that a touchstone might be found in the observation that "judges are supposed to be objective and politically neutral." I think you've focused on something important here. Perhaps this can be productively generalized into a rule proscribing use of a judicial title after leaving the bench for activities that are inconsistent with the judicial role--that is, partisan activities (or inversely, permitting use of the title for activities consistent with the judicial role). So it's easy to say that a former judge acting as an advocate in a courtroom or a negotiation should not use the title.

The problem, of course, is that the "partisanship" line is not at all easily drawn in lots of cases. Was Judge Landis non-partisan in imposing a more rigorous ethical regime on the National Pastime? Wasn't Judge Freeh non-partisan in conducting an independent investigation of the Penn State administration's handling of Jerry Sandusky? Presumably both Freeh and his "client" (Penn State) viewed his role as that of an objective factfinder. Ironically, Judge Napolitano would likely argue that he was no partisan, but rather offered only objective analysis for a famously "fair and balanced" news service.

Without trying to solve the problem I just posed--or even suggest that the more generalized test I suggested is a complete or a good one--there is at least one other perspective that may help define when use of a former title of office is not OK. That's when it potentially misleads others into believing that the person using the title still currently occupies the office. That, it seems to me, would be the problem if Louis Freeh had called himself "FBI Director Freeh" in commenting on his conclusions regarding Penn State, as opposed to "Former FBI Director Freeh." One thing this illustrates is that, by common usage and understanding, use of some titles after leaving office does not necessarily imply current occupancy of the office. Hence Colonel Sanders, Governor Romney, Secretary Clinton.

I suggest this whole thing is a good deal harder than it looks at first.

--Bernie