I Hear Crickets From the American Bar Association About Threats Against Colorado Justices

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“To hear crickets” means “silence.”[1]  That is what I hear from the American Bar Association regarding the threats to the Justices on the Colorado Supreme Court.

The Colorado Supreme Court issued a controversial decision.  Anderson v. Griswold, 2023 Co. 63, __ P.3d __, 2023 WL 8770111 (Dec. 19, 2023), cert. granted sub nom. Trump v. Anderson, __ U.S. __, 2024 WL 61814 (Jan. 5, 2024).

That decision was followed by threats of violence against the Justices of that Court.

The Hon. Paul W. Grimm (ret.) recently wrote an OpEd stating that the Legal Profession Must ‘Speak Out’ Against Unfair Attacks (duke.edu)(Oct. 24, 2023).   Judge Grimm called for members of the legal profession to defend judges “now, and with a renewed sense of urgency.”

I followed suit in Threats Against the Colorado Supreme Court Must Be Called Out and pointed to the recent killing of a Maryland Judge in his driveway in a blog titled Judge Paul Grimm: The Judiciary is Under Attack.  Lawyers Need to Defend It.  Maryland District Court Chief Judge John Morrissey said that seven “credible threats” were made against District Court judges in 2022.[2]

In his OpEd, Judge Grimm asked and answered an important question: “So, who will defend the judges and the judiciary? The answer is clear: The legal profession must—now, and with a renewed sense of urgency.” [emphasis added].

But, I’ve heard crickets from the American Bar Association about the threats in Colorado.

The ABA website states that the ABA has a “Committee on the American Judicial System” whose role is to protect “judicial independence and the rule of law” as well as to respond “to unjust criticism of the judiciary….”

I’m an ABA member.  So, I wrote to the ABA: “I would like to ask the Committee what it has done publicly about the threats to the Colorado Supreme Court.”

On January 4, 2024, an ABA spokesperson replied that:

The ABA President has been made aware of the request for a statement and the request is under consideration. The ABA was a leading advocate for legislation, since enacted by Congress, to protect the federal judiciary and safeguard the personally identifiable information of federal judges and their immediate families. The ABA has called on states to adopt laws and policies to adequately fund judicial system security protocols to prevent acts of violence related to the justice system.

In my opinion, that isn’t enough. Generic legislation and adequate funding are good things, but here there are specific threats arising out of Justices deciding a case presented to them.  A public and forceful response to each threat is needed.  The threats are real and serious.[3]  Silence and “consideration” is not an effective option.

The ABA states that it “stands committed to its mission of defending liberty and pursuing justice.” See About the American Bar Association.   It works to “advance the rule of law” and to increase “respect for the rule of law” and the legal process.  Id.  The ABA’s website states that:

The ABA is the largest voluntary association of lawyers in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.  [emphasis added].

The ABA has, in the past, spoken up about the dangers faced by the judiciary.  To its credit, on October 20, 2023, the ABA published the Statement of ABA President Mary Smith RE: Murder of Maryland circuit court judge (americanbar.org).  The ABA wrote:

We are angered at yet another attack on a jurist for doing the job they swore to do. Threats against the judiciary have increased more than fivefold in the past decade, and it needs to stop. These assaults are attacks on the rule of law. Judges must be able to decide matters that come before them without fear of reprisal or physical harm to themselves or their families. If they cannot, an essential element of our democracy will be lost….  [J]udges cannot be made targets for any disgruntled person with a grievance….  The violence against our judges must stop and their protection must become a priority. [emphasis added].

Thank you for that.  Threats, as well as violence, must stop.  Law enforcement’s role is crucial.  The “national voice of the legal profession” is also important.

However, since the December 19th Colorado decision, there have been only crickets on the threats against the Colorado Justices for doing their job.

It’s not like the ABA fails to issue statements on issues that impact the law.  On December 19, 2023, the ABA President  issued a Statement of ABA President Mary Smith RE: Texas immigration law (americanbar.org).  On December 8, 2023, there was a Statement of ABA President Mary Smith RE: International Human Rights Day (americanbar.org).  On December 1, 2023, there ABA President issued a Statement RE: Passing of Sandra Day O’Connor (americanbar.org).  On November 13, 2023, there was a Statement of ABA President Mary Smith Re: U.S. Supreme Court ethics policy (americanbar.org).  There is a Statement of ABA President Mary Smith Re: Veterans Day (americanbar.org), a Statement of ABA President Mary Smith RE: United Nations Day (americanbar.org), a Statement of ABA President Mary Smith RE: Indigenous Peoples’ Day (americanbar.org), etc.

And, the ABA has issued statements that have nothing to do with the American legal profession.  D. Weiss, ABA withdraws 2 online statements on Israel-Hamas war (abajournal.com)(Nov. 30, 2023). The article reported that: “Two statements on the Israel-Hamas war by ABA President Mary Smith have been withdrawn and are no longer available on the association’s website.”

What happened in Colorado?

The Colorado Supreme Court issued Anderson v. Griswold, 2023 Co. 63, __ P.3d __, 2023 WL 8770111 (Dec. 19, 2023), cert. granted sub nom. Trump v. Anderson, __ U.S. __, 2024 WL 61814 (Jan. 5, 2024).

One day later, a December 20, 2023, article by Mr. Ryan J. Reilly reported that Colorado justices face flood of threats after disqualifying Trump from the ballot (nbcnews.com). Advance Democracy reported “significant violent rhetoric” against the justices, and “some social media users posted justices’ email addresses, phone numbers and office building addresses….  ‘This ends when we kill these f–kers,’ a user wrote….”  Id.  The NBC article quotes Mr. Daniel J. Jones:  “Political leaders on both sides of the political aisle need to speak out against these calls for violence….”

What has happened since? On January 2, 2024, Ms. Rebecca Shabad reported Armed man breaks into Denver building housing Colorado Supreme Court (nbcnews.com).  “Significant and extensive” damage was reported.  An unarmed guard was held at gunpoint, keys were taken, and the intruder “accessed an unknown number of floors.”  Id.  Shots were fired inside the building.

Fortunately: “Authorities don’t believe it’s linked to previous threats made to state Supreme Court justices, the release said.”  Id.  However, the incident illustrates the vulnerabilities.

When a Maryland Judge was murdered, the Maryland State Bar Association was not silent.  R. Santini (president-elect, MSBA), and E. Gollogy (president, Md. Chapter, Federal Bar Association), wrote that Judges must be kept safe (baltimoresun.com)(Dec. 19, 2023).

The Maryland State Bar Association, the voice of Maryland’s legal profession, and the Maryland Chapter of the Federal Bar Association, supported legislation protecting judges’ home addresses and wrote that: “[T]he multitude and escalation of recent threats and actual acts of violence perpetrated against our judges negatively impact the judicial process, a cornerstone of our democracy. A judicial officer must be neutral, detached and free from danger in the dispensing of justice. This can only be achieved if judges are safe in their own homes.” [emphasis added].

Today, the Colorado Supreme Court – Homepage states that: “The supreme court is working remotely. The Ralph Carr Judicial Building is closed until further notice.”

I can’t say that an ABA position statement would stop anything.  But I can repeat that: “The only thing necessary for the triumph of evil is for good [people] to do nothing.”[4]

Nobel Peace Prize awardee Elie Wiesel said: “There may be times when we are powerless to prevent injustice, but there must never be a time when we fail to protest.”

It is beyond time for the ABA to find its voice on this issue.

UPDATES after this January 7, 2024, post:

UPDATE: January 12, 2024: D. Weiss, Federal judge in Trump case is apparent victim of ‘swatting’ incident at her home (abajournal.com)(Jan. 9, 2024).

UPDATE: on January 7th, I wrote to the American Bar Association, included a link to this post, and stated: “I will publish any response that the ABA would like to have me publish.”  No response has been received.

UPDATE:  Former Federal Judge Calls on Bar Associations to Respond to Judicial Threats | Law.com (Jan. 9, 2024).  “Judges are certainly not above criticism,” said [Judge Paul W.] Grimm [ret.]. “But typically, what you say is that the decision is wrong, we will appeal, and we think an appellate court will reverse it. You do not attack the integrity of a judge, publish their home phone number and address, and put it out with vitriolic statements on social media where people can pick their own silo where they get information.”  The article states that Judge “Grimm noted that the attacks are not limited to attacks by the right against the left.”

As for solutions, Grimm said that it is time for bar associations to get involved and that their responses need to be faster.

“The American Bar Association’s canons says that lawyers are encouraged to speak up against unjustified attacks on the judiciary,” said Grimm. “But they are not doing that with any quick, fast response. And the news cycle is instantaneous.”

Grimm said that in a situation like the one currently in Colorado, where it is publicly reported that there are threats against the judiciary, the bar associations need to respond within 24 to 48 hours saying that it is an outrage, that it is not acceptable public behavior, and that the legislature needs to pass sufficient legislation to protect judges.

While Grimm noted that some bar associations have spoken out immediately following such incidents, it is not happening in a coordinated way that responds quickly and across the board.

“It is disappointing to me that the organized bars, who are most aware of the importance of public confidence in the judicial system for them to practice law on behalf of their clients, have been so passive on this important topic,” said Grimm. “They have been passive instead of muscular in their response.”

Id.  “Grimm said he is interested in reaching out to the presidents of all the major bar associations to see if there is interest in having a conference or symposium on mounting a coordinated effort to respond to attacks against the judiciary in a timely, informative and respectful way.”  Id.

UPDATE:  A. Reiss and S. Concepcion, Judge in Trump’s civil fraud trial faces bomb threat ahead of closing arguments (msn.com) (“A Nassau County bomb squad was called to [Judge] Engoron’s home and was investigating Thursday morning; it is unclear whether Engoron was home at the time.”)

UPDATE: A. Ebert, ‘Shell-shocked’ Courts Review Security After Threats, Violence (bloomberglaw.com)(Jan. 8, 2024)(discussing in part a consultant for the National Conference of State Courts who specializes in courthouse planning and security and a meeting of the National Sheriff’s Association’s committee on courthouse security).

____

[1] To hear crickets Idiom Definition (grammarist.com)

[2] The Maryland District Court is a State court. It is not the United States District Court for the District of Maryland.

[3] See Jack Forrest and Sean Lyngass, Trump Colorado ballot: FBI says it’s investigating after reports of violent threats to judges in case | CNN Politics (Dec. 25, 2023); cf. Anna Gordon, Dramatic Video Shows Man Jumping Over Bench to Attack Nevada Judge During Sentencing (msn.com).

[4] “The only thing necessary for the triumph of evil is for good men to do nothing,” a Quote Falsely Attributed to Edmund Burke | Open Culture.

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