by Ken MacVey
It has become harder to be a judge, especially when it comes to politically controversial cases handled by federal judges. President Trump, his cabinet members, and White House spokespersons have relentlessly shot off barrages of nasty, personal attacks on judges for making decisions Trump disapproves. One stand – out is Trump’s comment that Supreme Court justices who ruled against his tariff program are “an embarrassment to their families.” He has called judges “rogues,” “criminals,” “unpatriotic,” “lapdogs,” “crooked,” and “radical left lunatics.” These comments cannot be dismissed as hyperbolic rhetoric any more than Trump’s invitation to his supporters to come to Washington DC on January 6, 2021 (“it will be wild”) can be dismissed as friendly “chit chat.”
Death threats against judges have increased astronomically. Judges are being “doxxed.” Last month, Chief Justice Roberts in an interview declared it is fair game to criticize judge’s decisions but not fair game to go after a judge with personal attacks. He said it’s dangerous and “it has to stop.”
Judges judge. That’s true by definition. What is not tautological is that judges are also judged. Despite Chief Justice Roberts’ well justified alarm about the escalation of personal attacks on judges and courts— judges and courts still must be judged. This is particularly true in these unprecedented and challenging legal times. Speaking up for judicial independence is essential. Speaking up about judges’ decisions that undercut the rule of law is essential too. Judges, especially federal judges and Supreme Court justices, will face in the next months the gravest challenges judges have had to face perhaps in the history of the American republic. How they fare will be judged by the American people and history. If judges flinch in doing their duty in upholding the rule of law and standing up to a president’s attempts to shred the Constitution, they must be judged. That absolutely does not include personal, angry attacks. But it does not mean being silent either when the rule of law is being undermined.
Lawyers Judge Judges
As a court room lawyer I know lawyers judge judges all the time. That is part of their job when they appear in court or before a tribunal. The judge has to be assessed–how will the judge react to your case, your client, you? How smart is the judge? How hard working? How biased? How competent? How diligent? What works with the judge? What doesn’t? That’s why lawyers who are appearing before a judge for the first time will seek input from colleagues, look up judicial profiles and interviews, and research how the judge has ruled in similar cases.
The ones who know judges best are lawyers and judges. Ironically, they are the ones least likely to talk publicly about which judges are bad. One colleague told me about a trial where the federal judge would say “objection sustained” during his witness examinations when no objection was made. When the judge told him to produce a document in court, my colleague told the judge it was in an office sixty miles away—the judge told him to hire a helicopter over the lunch hour to retrieve it. (Fortunately, the judge forgot about it after lunch.) Someone else told me that the same judge had to be talked out of sending a marshal to arrest his mechanic for not servicing his car fast enough. Such stories were traded among lawyers but never publicly and never in print. (The judge some time ago departed this planet.)
Why is it that judges and lawyers generally don’t talk publicly about bad judges when they are in the best position to know who is bad? One federal judge told me that colleague judges are like family, and some things were just not to be talked about outside family even when the family is dysfunctional.
Lawyers in contrast are bound by laws and rules of professional conduct constraining them from speaking ill of judges. A typical rule is California’s that says a “lawyer shall not make a statement of fact that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge . . .” Violation of the rule can lead to discipline by the bar. Such rules appear legally grounded although some critics have questioned them on First Amendment grounds. In any case, lawyers rarely will criticize a judge publicly even if the judge is known for falling asleep in court or constantly berating and demeaning lawyers and parties without cause. That is in part because of this rule but also because of practicality. As a lawyer you may have to appear in front of the judge again.
I once had a problem with judges in a certain county improperly dismissing cases after judgment was entered because they wanted to show in their reported statistics they were resolving cases. They didn’t understand or appreciate they were wiping out the judgement by dismissing the case in its entirety— a legal disaster. After unsuccessfully trying to explain the problem to the judges and refusing to agree to these dismissals while watching other lawyers quietly acquiesce to the vaporization of their hard-earned judgements, I wrote a letter to the presiding judge about the practice. The presiding judge responded by sending me a copy of his memorandum instructing all judges not to ever engage in this practice because, as he explained, they were baselessly wiping out valid judgments. In forwarding the memorandum to me, he added that he did not disclose my name to any of the judges. Although I had not requested anonymity, I appreciated his being sensitive to the issue.
But we are now in an era of hyper-polarization and politicization—where for the sake of protecting the integrity and the independence of the judiciary—lawyers should be prepared to shed anonymity and to defend judges and courts when warranted but also be prepared to criticize judges and courts when warranted. The California Bar comment on the rule I previously quoted adds: “To maintain the fair and independent administration of justice, lawyers should defend judges and courts unjustly criticized. Lawyers are obligated to maintain the respect due to the courts of justice and judicial officers.”
Perhaps this comment should be supplemented. Lawyers also have a right to speak up, in temperate, truthful tones, when judges and courts by their decisions and actions undermine the fair and independent administration of justice.
The Escalating Politicization of the Judge Selection Process
The selection process for judges has always been political. State governors may appoint state judges from time to time. US senators weigh in on the selection and nomination of federal judges, especially for nominees involving their state. Inevitably the political preferences and party of the governor or the senator come into play. But the process has become politicized to an unprecedented degree. At the state level, the election of state supreme court justices can become the subject of nation-wide attention and election campaign contributions. In 2025 over $100,000,000 was spent in a contested election for a position on the Wisconsin Supreme Court.
At the federal level Leonard Leo, a leader in the Federalist Society, has over the last several years played a key role in the selection of federal judge and Supreme Court justice nominees proposed by Republican presidents. Leo has filtered these nominations with a very right wing, conservative tilt. But even Leo recently got publicly roasted by Trump because some of the judges Leo promoted and Trump appointed had ruled against the Trump administration.
In Trump 2.o, a litmus test for a judicial nomination appears to be loyalty to Trump. Trump nominated to the Third US Circuit Court of Appeals Emil J. Bove III, who had been Trump’s personal lawyer and in Trump 2.0 a high level Department of Justice official. In Senate confirmation hearings, it was revealed a whistleblower claimed Bove had advised attorneys in the Department of Justice to violate court orders (Bove denied the allegation). The acting Southern District of New York US attorney appointed by the Trump administration resigned when she was instructed by Bove to drop the criminal case against New York Mayor Adams. Bove’s life- time tenured appointment was nevertheless approved by the Senate in a 50 to 49 vote. A few months after confirmation, Bove attended a Trump presidential political rally. This unusual move for a federal judge received negative publicity. Commentators have speculated that Bove is high on Trump’s list for future Supreme Court nominations.
Judicial temperament is not necessarily a litmus test, however. Another controversial Trump appellate appointment is Judge Lawrence VanDyke, who has served as a 9th Circuit US Court of Appeals judge since 2020. The American Bar Association– which has been evaluating federal court nominees for over sixty years–found VanDyke unqualified and cited reports that personal acquaintances considered him arrogant and ill tempered. (The ABA report was vociferously criticized, especially in conservative circles.) VanDyke even garnered opposition from six retired justices of the Montana Supreme Court (VanDyke had unsuccessfully sought to be elected to that court). Nevertheless, he was confirmed. In his tenure on the Ninth Circuit, Judge VanDyke has generated controversy. In a dissent in a Second Amendment gun case, he took the unprecedented step of supplementing his dissent by posting a video showing him loading a magazine into a gun. Last month, in his dissent in a discrimination case regarding transgender women, Judge VanDyke started his opinion this way: “This is a case about swinging dicks.” He suggested judges were “woke” and “complicit” in harming Americans. Twenty-seven judges of the 9th Circuit publicly rebuked him for the tenor of his opinion. One judge said: “The lead dissent’s use of such coarse language and invective may make for publicity or entertainment value, but it has no place in a judicial opinion.” Judge VanDyke responded to these criticisms by accusing his colleagues of having “the fastidious sensibilities of a Victorian nun.”
With new nominations it could get worse. Trump judicial nominees in recent Senate confirmation hearings refused to affirm that Joe Biden was elected President in 2020.
In such times silence out of a sense of respect for the judiciary may actually prove to be a disservice to the judiciary.
In These Troubling Times, Judges Have Demonstrated Their Independence
At the same time, judging judges also means recognizing when judges demonstrate judicial independence even in a hostile climate. Several district court judges appointed by Republican and Democratic presidents have ruled against the Trump administration despite being attacked by the administration. The nonpartisan legal site Just Security based at New York University School of Law has found that federal judges are no longer automatically giving the Trump administration a free pass under “the rule of regularity,” which presumes the government has engaged in regular and lawful conduct. It reported: “[B]y the middle of March 2026, federal judges have stated in increasingly explicit terms, that the government can no longer demand the degree of deference it once received due to conduct in the specific case before it or more broadly.”
Chief Judge James Boasberg for the U.S. District Court in the District of Columbia, blocked subpoenas regarding Federal Reserve Chair Jerome Powell finding that the federal government provided virtually no evidence to support its alleged suspicion Powell committed a crime. Widely respected, Chief Judge Boasberg has not waivered despite baseless vicious personal attacks by the Trump administration and certain Republican members of Congress regarding this and other rulings of his.
When the Supreme Court conducted oral argument on the challenge to Trump’s executive order designed to undermine birthright citizenship for children of immigrants, Trump sat in the audience. No president before has sat in on a Supreme Court oral argument. It was an obvious effort to intimidate the justices. That effort failed. Chief Justice Roberts and the associate justices appropriately did not acknowledge Trump’s appearance. In listening to the oral argument, I could not detect any indication that Trump’s appearance had inhibited the justices in any manner in their questioning. This is as it should be.
It Will Get Worse for Judges as We Approach the Mid-Term Elections
Trump’s approval ratings in the polls are sinking to all-time lows. The MAGA base is splintering. With Trump’s war on Iran, Marjorie Taylor Greene has labeled Trump “insane.” Tucker Carlson has called on administration officials to defy any illegal orders Trump issues. Alex Jones has pronounced Trump is physically and mentally disintegrating and that the President we once knew “no longer exists.”
Trump’s “f-bomb” posting on Truth Social that he would destroy an entire civilization if Iran did not capitulate to his demands triggered several members in Congress to call for impeachment or intervention under the 25th Amendment.
In the meantime, as we get closer to the mid-term elections, Trump has issued an executive order regulating who gets to vote. His administration has seized ballots in Fulton County, Georgia in an obvious ploy to manufacture an alternative narrative about the 2020 election. Acting Attorney General Todd Blanche has suggested ICE agents will be stationed at the polls.
Day by day, Trump seems to be becoming more unhinged and more desperate as we get closer to the mid-terms. His “f-bomb” warning to Iran is a warning to us all. Nothing is off the table. Nothing is off limits. It is becoming harder to deny that Trump’s desperation may lead to more extreme efforts to rig or derail the mid-term elections. It may prove to be our greatest constitutional crisis since the Civil War.
There will be lawsuits and judges and courts will be asked to step in. The pressure will be immense. And how they perform will be judged. By all of us and by history.