[Cross-posted from The Faculty Lounge]
My earlier post on Andrew Napolitano got mixed responses, with some readers (and tweeters) comparing his use of “Judge” to the fairly common practice of using honorifics for former senators, governors, and other office holders. Let me suggest that there is a difference, depending on the nature of the former office. Everyone understands that governors and senators have always been political figures, so there is no exploitation when they use their former titles for political purposes. Nobody expects Pres. Bill Clinton to be anything other than a partisan Democrat.
Judges, on the other hand, are supposed to be objective and politically neutral. (Yes, I know that is not strictly true, but many citizens still idealize judges and certainly respect them more than mere politicians.) Consequently, the use of a formerly-held judicial honorific can appear to lend greater weight to a political or legal argument, even decades after the individual has left the bench. Even in situations where individuals are entitled to call themselves whatever they want, I think that media organizations, as a matter of discretion, ought to omit judicial honorifics for former judges. That is the practice of The New York Times, The Hill, and other organizations, which use honorifics sparingly in all circumstances.
But if the Napolitano situation isn’t persuasive, let me raise another example.
As many readers know, Graham Spanier, the former president of Penn State University, was convicted in March of misdemeanor child endangerment, growing out of the Jerry Sandusky child abuse scandal. Spanier had earlier been forced out of office following an investigation led by former federal judge and FBI director Louis Freeh. In the aftermath of the Spanier conviction, Freeh issued a written statement condemning Spanier (who had yet to be sentenced and announced that he planned to appeal) and two co-defendants who pled guilty. He also called for the resignation of current Penn State president Eric Barron and two members of the board of trustees. The caption on the statement reads:
FOR IMMEDIATE RELEASE
March 24, 2017
STATEMENT OF JUDGE LOUIS FREEH UPON THE JURY CONVICTION OF FORMER PSU PRESIDENT SPANIER FOR CHILD ENDANGERMENT
I have no quarrel with Freeh’s decision to make post-conviction comments on the Spanier case – which I have not followed – but I think he is exploiting his former office by continuing to call himself “Judge,” the purpose of which is obviously to add greater weight to his opinion, including the defense of his own investigation:
These very sad criminal convictions also completely confirm and verify all the findings and facts which my team and I established after an exhaustive investigation commissioned by the then-PSU board.
If you don’t think it was wrong to issue this statement as “Judge Louis Freeh,” imagine that he had instead issued it as “FBI Director Freeh,” without indicating that he no longer holds the office. And if you agree that the latter would have been wrong, why would the judicial honorific be acceptable?
The Freeh statement was reported by the Chronicle of Higher Education, the AP and the local press in State College, none of which referred to him as “Judge.” They did describe him as “former FBI director,” although only once in each article, which I think is appropriate.
I am not making a blanket argument against the use of former titles, but I do think that judges hold a unique position in our society. Although they may use their honorifics for purposes other than the practice of law, I suggest that reporters and commentators ought to follow the practice of the New York Times and leave judicial titles out of it.