Don’t Place Judicial Accountability In The Dark

Efforts to ensure the safety and security of federal judges – including by shielding certain personal information, such as addresses, from public disclosure – are sadly necessary to protect the judiciary from intimidation and physical threats. But these efforts must balance safety with the public’s right to access to information that is essential for transparency and accountability. Unfortunately, current proposals strike the wrong balance.

Shining a Light on the Judiciary

Transparency advocates cheered last month when federal lawmakers introduced measures to increase openness in the judiciary, like requiring video broadcasts of Supreme Court proceedings. But given recent events, many advocates are less concerned about video than about maintaining the few tools available to conduct public oversight of the third branch.

That’s because right now court administrators are working with the Senate Judiciary Committee on a proposal that, under the guise of improving security, would hamper the public’s ability to hold judges accountable for corruption or conflicts of interest.

There is no doubt that more should be done to protect federal judges from threats, intimidation, or violence. The son of District of New Jersey Judge Esther Salas was killed last summer by a disturbed and racist former litigant. In 2005, a former litigant murdered the husband and mother of Northern District of Illinois Judge Joan Lefkow.

Unfortunately, key parts of the security proposal that judiciary officials released in September in response to the New Jersey tragedy raise red flags about government overreach. Though it did incorporate funding for judges’ home security systems and training to help identify threats, which are sensible steps, the crux of the package was the creation of a new power for the judiciary to remove judges’ “personally identifiable information,” or PII, from the internet.

That might sound reasonable until you consider the breadth of what the judiciary considers PII and what kinds of information are relevant for public oversight and transparency purposes. PII, according to this security proposal, includes but is not limited to a judge’s voter registration information; property ownership records, including  secondary residence(s) and any investment property; birth and marriage records; marital status; vehicle registration; family members’ employers; and religious, organization, club or association memberships.

In other words, if this proposal were signed into law, and if a reporter or nonprofit were to publish information as benign as a birthday, a Rotary Club membership or a spouse’s job, security officials could request it be unpublished, with civil or criminal penalties for noncompliance.

More to the point, if a judge was found to have received, say, a car, second home or other perk from someone with a case in her courtroom, that information could be scrubbed from the public record. Notably, under the current proposal, former judges would enjoy the same shield, including those who later join other branches of government, where the need to ensure public oversight and deterrence against corruption is equally critical. Just as concerning is that journalists and other members of the public would inevitably find themselves self-censoring given the uncertainties of how exactly the proposal would apply.

The cumulative effect would be to chill speech – and with it chill the few judicial accountability mechanisms we have.

Though the most problematic aspects of the proposal were modified a bit when it was introduced by Senators Bob Menendez (D-NJ) and Cory Booker (D-NJ) last fall, final passage in December failed, meaning negotiations on the text began anew in 2021. It’s unclear which version is now under consideration.

Frustratingly, better alternatives that prioritize both judicial security and public transparency already exist. In 2012 the Illinois legislature passed a law as a direct, albeit delayed, response to the Lefkow murders. It protected judges’ PII, but limited the definition of that category to a judge’s home and email addresses; personal telephone numbers; identity of minor children; banking, credit card, and social security numbers; and marital status. The legislation was not perfect, but at least it did not threaten to wipe huge swaths of information about judges from the internet that the public, including the press and government watchdogs, rely on to conduct oversight.

A New Jersey law signed in November included just two categories of PII: home addresses and personal phone numbers.
Congress should of course give the judiciary the resources it needs to prevent direct threats, secure judges’ homes and courthouses, and train them and their staffs to identify credible danger. But this goal does not require elected officials to proceed in a way that also blocks so much sunlight.

Image: The E. Barrett Prettyman Federal Courthouse, an historic building in Washington, D.C., U.S. It was built in 1949-50 and currently houses the United States District Court for the District of Columbia, the United States Court of Appeals for the District of Columbia Circuit, and the United States Foreign Intelligence Surveillance Court. 

 

About the Author(s)

Gabe Roth

Gabe Roth is the executive director of Fix the Court, a nonpartisan organization that advocates for greater transparency and accountability in the federal judiciary.