Amid court bashing, former federal judges will push back in Raleigh| Opinion

Allyson K. Duncan, a retired federal judge, refers to herself in courtroom parlance as “Exhibit A” while describing how much has changed since MAGA politics collided with the courts.

Duncan, a Durham native and Duke Law graduate, represents a time before judges became excoriated by the president and subject to open defiance by federal prosecutors. A Black Republican, she was nominated to the federal bench by President George W. Bush in 2003 and was confirmed by the Senate 93-0.

Remember those days? Duncan would like to bring them back, at least for judges. She is working with the nonprofit group Keep Our Republic to increase understanding of the judiciary’s role and the importance of its independence.

Duncan and three other retired federal judges will host a forum in Raleigh next week focused on defending the judiciary. The event will be held at 6 p.m. Monday at N.C. State University’s McKimmon Center. North Carolina Sen. Thom Tillis will address the forum by video and journalist Judy Woodruff will moderate. Admission is free.

Too many politicians and ordinary Americans don’t accept the independent role of the judiciary as established by the Constitution, Duncan said. “They equate independence with being renegades, or unaccountable, or rogue,” she said. “That’s ignorance and misinformation that is being spread without a counter – and we want to be the counter.”

She said much of the misunderstanding starts with President Donald Trump.

“The extent to which the tone is set at the top certainly doesn’t discourage the types of behavior we’re encountering,” she said. “If you call judges stupid and rogue, it is bound to have an effect.”

It’s a conflict in which judges have little room to defend themselves. That was clear after Trump lashed out at the majority of U.S. Supreme Court justices who ruled his sweeping tariffs were illegal. “I’m ashamed of certain members of the court,” Trump said. “Absolutely ashamed for not having the courage to do what’s right for our country.”

Firing back isn’t an option for the justices — or any judges, Duncan said.

“I’m not sure rhetoric is the best response,” she said. “I think we would lose credibility if our dialogue was as incendiary as the president was after the tariff opinion came out. We try to keep the moral high ground to the extent possible and inform rather than rage.”

But judges can and should do more to assert the constitutional role of the judiciary. When Trump administration agencies and prosecutors ignore court rulings, hold them in contempt and issue more specific orders about compliance. Rather than accommodating Trump’s action, the conservative majority on the Supreme Court should speak quickly when the president’s orders are clearly unconstitutional, such as his order ending birthright citizenship.

But it’s not just politicians and Trump prosecutors who undermine respect for the courts. Judges who are openly partisan do it, too. Trump’s protector in Florida, U.S. District Judge Aileen Cannon, should face discipline. In North Carolina, the state Supreme Court’s Republican majority has weakened public faith in the courts with plainly partisan rulings. Unfortunately, Republicans have also weakened the body that is supposed to enforce proper judicial conduct, the Judicial Standards Commission.

Retired judges have more freedom to speak publicly than sitting judges. That’s why former judges such as Duncan have joined the Keep Our Republic’s Article III Coalition, named for the section of the Constitution that established the judiciary. The group is holding forums around the nation to defend judicial independence and the rule of law.

Most people who attend likely already understand the need for judges who rule by the law rather than the political winds. But, Duncan said, well-informed people “know people who aren’t and that’s what we do. We touch the people we can and seek to have them spread the word.”

Education helps. But it’s also time for judges who are still in their robes to bang the gavel harder on those who deny or abuse the power of the courts. If it’s lost, so is democracy.

Associate opinion editor Ned Barnett can be reached at 919-404-7583, or nbarnett@newsobserver.com