Judge Childs warns threats erode judicial independence

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Topics such as judicial independence and the rule of law have sometimes been addressed as theoretical concepts in the past. But with both principles more and more under attack in the real world, it’s become important to discuss them in practical terms.

That was the impetus for a lecture and panel discussion recently held in the auditorium of Mitchell Hamline School of Law. The keynote speaker was Judge J. Michelle Childs of the U.S. Court of Appeals, District of Columbia Circuit.

Childs maintained that courts and the judicial system aren’t of much use if the average person doesn’t have it within their grasp.

“Courts must remain accessible,” Childs said in her presentation. “Justice only lives where people can access it. Societies have learned that when courts become unreachable, justice begins to fade.”

Childs’ lecture was the keynote of the school’s fifth annual program in honor of Mitchell alum Judge Steven E. Rau. Rau, a member of the Mitchell Hamline board of trustees who died in 2019.

She underscored that the strength of the United States’ democracy has always depended on an independent judiciary, and that efforts to abandon that principle have been shown to be dangerous.

“[The law] survives because those with the power to uphold it do so,” Childs said. “We could be relegated to another country’s history — Germany, South Africa, places where we’ve seen suspension of the courts.”

Childs has seen a rapid rise since being appointed to a South Carolina circuit court judgeship 19 years ago. Her nomination to serve on the United States District Court for the District of South Carolina was confirmed in 2010, and she was elevated to the court of appeals in 2022.

She reminded the audience that there’s always tension between branches of government, but more and more, parties involved are tending to look for a shortcut past the appellate review process. That problem, she said, is magnified by how social media allows the dissemination of misinformation and disinformation.

Childs also talked about the increasingly frequent occurrences of intimidation against judges who make unpopular decisions, and the chilling effect those incidents have on all levels of the judiciary.

“I’ve had pizzas sent to my house,” she said, referring to a threatening tactic indicating the anonymous sender knows where she lives. “It gets to where you don’t even want to answer your phone when you’re not playing politics, you’re just doing your job. We’re asking judges to understand that this is real.”

She pointed out that even U.S. Supreme Court Justice Amy Coney Barrett was the target of a pipe bomb threat.

“You can’t speak out except for your opinions,” she said. “Twelve federal judges, including those appointed by Donald Trump, have been threatened. At least one said he now lives in fear. Somebody’s going to die.”

Childs’ keynote was followed by a panel discussion on the admission oath and the practical steps lawyers can take to defend the rule of law.

“It’s critical that we discuss this topic right now,” said Minnesota Attorney General Keith Ellison during the discussion. “By speaking up for the rule of law with courage and conviction, you will spread it to everyone else.”

Ellison was blunt about the Trump administration’s penchant for ignoring judicial rulings it doesn’t like.

“They need to suffer public derision,” Ellison said. “There should be a social cost to saying, ‘I’m not going to do what the judge said.’”

Former Minnesota State Bar Association President Paul Floyd called the judicial profession “a lonely job. Our oath doesn’t mention protecting the judiciary. I don’t think it’s presumed anymore.”

All the panelists called on lawyers, individually and collectively in the form of bar associations, to form a line of defense on behalf of the judiciary. Floyd noted that thanks in part to efforts from the state bar association, the Minnesota Legislature this year passed the Judicial and Court Staff Safety and Privacy Act, which keeps some personal information about judges, such as their home addresses, out of the public record.

“We as a profession are risk-averse,” said Mitchell Hamline Professor Ana Pottratz Acosta. “We evaluate the pros and cons. But this moment requires some degree of courage. Following your ethical duties requires a degree of courage.”

“If you’re a lawyer, you will meet a moment where you have to demonstrate courage,” said Ellison. “You have to do it. Part of what it means to be a lawyer is to be a guardian of democratic principle.”