Overprotecting Judges Threatens a Free Press
The tragic July attack on the family of U.S. District Judge Esther Salas in New Jersey has prompted the federal judiciary to ask Congress for sweeping new restrictions on the public’s access to information about judges. Many of the requests seem reasonable. Some, however, would appear to bar news organizations from revealing conflicts of interest or even bribes involving federal judges or judicial nominees.
The request for Congressional action, announced by the federal court system on Sept. 9, 2020, comes from the Judicial Conference of the United States, a panel of federal judges chaired by Chief Justice John Roberts that administers the federal courts. Ironically, these are the very people whom we entrust to protect our First Amendment rights and democracy’s need for government transparency.
The focus of the request for new restrictions is “judges’ personally identifiable information.” This would include home address, birth date, Social Security number, driver’s license number, financial and credit card information, e-mail address, and personal phone number. We can all agree that publishing these bits of personal information should be out of bounds. But the Judicial Conference request goes well beyond such examples personal data. It asks Congress to make it unlawful to publish or otherwise reveal property ownership records (including “any investment property”), marital status, vehicle registration information, an immediate family member’s employer, photographs of a judge or photographs of the judge’s home, and memberships in clubs or associations. Moreover, the same restrictions would apply to any person nominated by the President to a federal judgeship.
We haven’t seen precise legislative wording yet. But on its face, such vast restrictions could make it illegal for a news organization to reveal to the public, for example, that a Supreme Court nominee is a divorced member of a white supremacist group like the Ku Klux Klan, lives on his judicial salary in a $15 million eight-bedroom home, drives a Lamborghini, has expensive vacation homes in the mountains and at the beach, and has a son or daughter working at a bank found guilty of money laundering. If a news organization had a photograph of a known mafia boss having lunch with a federal judge or nominee, it would be barred from printing the photo. Moreover, judges and their immediate family members “must be exempt from state public information laws,” according to the Judicial Conference.
The judiciary has a duty to protect judges from harm. It also has a duty to protect the Bill of Rights. When it asks Congress pass laws abridging freedom of the press to keep out of public view relevant information about the source of a judge’s wealth or personal connections, or that of a nominee, the judiciary has gone too far. The federal judiciary must not become a secret society. Only Congress can prevent it.
