August Notes: All About the Judges

Judges: Social Media on Their Minds. As social media gets both more commonplace and mature, it’s natural that even judges will be using the stuff. I mean, it’s not like we’re going to require that newly-minted jurists relinquish all access to cat videos, dank memes, and food photos, right? However, as this discussion with several prolific judicial users of social media shows, the rules of the road for how judges should think about social media issues are still far from being sorted out. Some litigants will parse all corners of a judge’s social media trail, looking for indications of bias – even in areas as innocuous as the accounts a judge follows on twitter. For social media-savvy judges like the Texas Supreme Court’s Don Willett and Georgia Court of Appeals Chief Judge Stephen Dillard, engaging on social media requires a high level of attention: no commenting whatsoever on pending matters, and steering clear of political controversies.

But Even a Judge’s “Friends” Can be Problematic. Most of us know by now that a “friend” on Facebook is not the same as a “friend” in real life. Depending on the standards we choose to use, our Facebook “friends” may include casual acquaintances, business associates, and people we haven’t seen or spoken to in decades. But the unfortunate familiarity of Facebook’s chosen term has caused no end of consternation for judges, who seem to face regular recusal motions because they happen to be Facebook “friends” with counsel appearing before them (here’s the latest example). It’s all part of the continuing inability of the bar to get that social media is simply an extension of things we do in real life. If judges can banter and share canapes with counsel at Bench-and-Bar events, why can’t they be Facebook “friends?”

Blogging Not a Showstopper for Judicial Nominee. As with twitter and Facebook, it was only going to be a matter of time before some blogging lawyers would be up for judgeships. Case in point: Kentucky attorney John Bush, nominated for a seat on the 6th Circuit, who had posted hundreds of political and contentious posts pseudonymously on the blog “Elephants in the Bluegrass.” Among these were posts sympathetic to “birther” claims about Barack Obama and others deeply critical of abortion rights. However, by differentiating between the political nature of his speech as a private citizen and the obligations he would undertake as a federal judge, Bush was able to win over enough votes – he was narrowly confirmed by the Senate in late July.

Social Media News and Notes:

No, says the 9th Circuit, a judge tweeting a news item is NOT grounds for recusal.

Texas judge under fire for venting on Facebook about being “tortured” by counsel.

And litigants? Beware of judges watching YOUR social media activity.

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