When it comes to the “court of public opinion,” no one fares worse than a judge.  While the media can parse the judge’s life story, each reversal and decision, the judge is constrained to sit there and take it on the chin, denied the opportunity to fight back and tell the media where to shove it.

But Judicial Reports posts about the American Bar Association’s panel presentation, “Judges Under Fire.”

“We can’t really depend on the media to do all of the job for us. The media has an interest in doing sound-bytes,” said Cook County Circuit Judge E. Kenneth Wright, Jr., reportedly the first sitting judge to helm the Chicago Bar Association.

“Many times, they want to spin it the way they spin it,” he later concluded.

Wright joined two other jurists, a former New York State Bar President, and a journalist on a panel sponsored by the American Bar Association to explore “Judges Under Fire.”

Overall, the judges agreed that members of the bench should be insulated from the press during active cases, toying with different kinds of groups that could maintain that separation: public relations specialists, bar association teams, or some other independent organization.

The problem has become pervasive, but worse, has created a downward spiral of public misunderstanding of the law that feeds upon itself.

[The] discussion began with footage of Fox News pundit Bill O’Reilly’s 2006 campaign against Vermont District Court Judge Edward Cashman. O’Reilly’s inflammatory editorial attacked the judge for a lenient sentence in a child molestation case.  

The panelists agreed that the video had misinterpreted the case, ignoring the fact that the judge had actually approved a plea agreement, rather than having issued the decision on his own. “This is a plea bargain. The prosecutor agreed to it,” explained Acting Supreme Court Justice Patricia Anne Williams, who was appointed to the Bronx Criminal Court in 1986, and has been an Acting Justice since 1989.

For anyone who has had the momentary pleasure of watching Bill O’Reilly knows, he isn’t always the most reliable source of information.  In fact, some might contend that little stands in his way of making his point, with truth being the first casualty.

This has both micro and macro effects.  Under the “judges are people too” heading, no one wants to be wrongly smeared in the media, whether by deceptive reporting or sheer ignorance.  As the public appetite for stories about criminal prosecutions grows unabated, the media is forced to make judicial decisions sound more interesting or controversial than they often are in order to interest their viewers.  This comes at the expense of the judge, whose absolutely proper and sound decision is contorted to appear outrageous.

At the same time, the public grows increasingly disgusted with a judiciary perceived to be out of touch or out of control, an impression largely fostered by the neocon pundits like Reilly who need scapegoats to whip up outrage in their fans.  Not only has this resulted in fostering a growing belief that the judiciary is part of the problem, but has made judges the target of particularized hatred and even violence.

The fact is that judges are easy targets.  As public officials, they are subject to criticism.  As judges, they can do little to respond.  No matter how badly the media mangles their decision, there is little to be done.  After all, it’s hard to explain complex issues of law in 60 second sound bites, and it’s so much easier to reduce the law to an absurd abstraction with a few colorful adjectives suitable for angry viewers.

And even when the system attempts to defend the judges, it does an awfully poor job of it.

“The media is not the enemy. You have to take advantage of these teaching moments,” said Kathryn Grant Madigan, the former president of the New York State Bar Association and a partner at Levene Gouldin & Thompson.

The legal leader urged all bar associations to create “rapid response” teams to speak on behalf of judges and help jurists deal with controversial cases. To that end, the American Bar Association offered copies of a pamphlet entitled “Rapid Response to Unfair and Unjust Criticism of Judges” to all attendees.

This is so lawyerly; Some pundit wrongfully skewers a judge, and lawyers put out a pamphlet.  Lawyers can find ways to bore people like nobody’s business, and there is nothing more ineffective than the collective wisdom of a bar association.

But the problem is becoming increasingly real.  Over the past week, Southern District Judge Louis Stanton has become the object of scorn over at Youtube because of his ruling in the Viacom case, to the point where people have posted videos threatening Judge Stanton for his ruling.  As an aside, I’ve tried a case before Judge Stanton, and found him to be one of the most gracious and thoughtful judges on the bench.  He used to walk around Foley Square on his own during the luncheon recess.  My guess is that he now has reason to fear for his safety, with the potential of some psycho, juiced up by their “outrage”, doing him harm. 

Unfortunately, the panel discussion proved one overarching point:  Judges are incapable of comprehending the problem, no less dealing with it.

“Maybe we have to explain ourselves, not just orally in court, but in a written opinion that can go up on the [court] website, so responsible reporters can go to the written opinion,” said Friedman, offering that as the most appropriate means for judges to explain themselves to the public.

Right, because the public really wants to spend its time reading judicial opinions, and the media would much rather spend 10 minutes of a 30 minute program explaining in painful detail the legal nuances that produced the controversial ruling. 

And what of the media?  Will they take responsibility for doing a better job of reporting judicial decisions?

Dale Van Atta, the only journalist on the panel, stayed quiet during the media debate. The reporter compiles the yearly “America’s Worst Judges” list for Readers’ Digest magazine — bestowing the “Broken Gavel Award” on hapless jurists.

When asked whom judges could trust in the media, he had a simple response. “It’s difficult to trust a young reporter. It is safer not to [go on the record]. I’m moving towards the ABA’s side,” he concluded…

Of course, this comes from a fellow who writes for that extremist rag,  Readers Digest.  No word as yet from more thoughtful and moderate Sean Hannity.