"Judges Can't Defend Themselves." Why the Legal Profession Must Step Up

In this episode, we sit down with Judge Robert Henry, former judge on the U.S. Court of Appeals for the Tenth Circuit, former Oklahoma Attorney General, and Jurist in Residence for Rule of Law at the University of Washington School of Law.

Recorded at the University of Washington School of Law's *Neither Sword nor Purse* conference, Judge Henry reflects on why judicial independence has been essential since the nation's founding, and why he believes it faces unprecedented challenges today. He discusses declining public trust in the courts, the ethical responsibilities of lawyers and judges, growing attacks on members of the judiciary, and why former judges, attorneys, nonprofits, and everyday citizens all have a role to play in defending the rule of law.

Drawing on decades of experience in public service and the judiciary, Judge Henry offers a thoughtful perspective on what is at stake if Americans lose confidence in an independent third branch of government, and why protecting the rule of law requires all of us.

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Welcome back to "Keepers of Our Republic", a weekly podcast from Keep Our Republic that takes listeners inside the institutions at the heart of American democracy. Every week, we feature thoughtful conversations with election administrators, retired federal judges, legal scholars, and civic leaders. 

Together, we explore how elections really work, why an independent judiciary is essential to a strong republic, and how an informed public helps safeguard the rule of law. Learn more about Keep Our Republic, a nonpartisan nonprofit, at https://keepourrepublic.org.

Welcome back to Keepers of our Republic, a new weekly podcast from Keep Our Republic that takes listeners inside the institutions at the heart of American democracy. 

Every week, Keepers of Our Republic features thoughtful conversations with election administrators and retired federal judges. We explore how elections are really run, discuss why an independent judiciary is essential to a strong republic, and separate fact from fiction in a fast-changing world. 

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Transcript

SPEAKER_02 0:10

Welcome back everyone to Keepers of Our Republic, a weekly nonpartisan podcast from the nonprofit Keep Our Republic. My name is Brooke, and this week I am thrilled to be bringing you a conversation with just an outstanding jurist, someone who has done so much work to really advocate for the rule of law, for the independent judiciary, and for protections for the judiciary during these, I know we get tired of saying it, but these unprecedented times that our third branch of government is experiencing right now. Judge Robert Henry is the former attorney general for the state of Oklahoma. He is the former dean of the Oklahoma City University School of Law and was later appointed to sit on the 10th Circuit Court of Appeals by President Clinton. He is now a jurist in residence for rule of law at the University of Washington School of Law in Seattle. And very recently, I had the pleasure of meeting with Judge Henry in person at a judicial conference that should be very familiar to longtime listeners of this podcast. This was the Neither Sword Nor Purse Conference Defending America's Independent Judiciary and the Rule of Law in Seattle this past spring. Over the past couple of weeks, months, really, we've been sprinkling in some of the conversations I had with just the incredible body of legal minds, scholars, uh civic educators who were present at that conference, asking them questions about, you know, what they think are the greatest challenges to our democracy and specifically to our judiciary in this moment, but more so how the legal profession can rise to meet these challenges. I've so enjoyed having these conversations and bringing them to you. I hope that you have as well. But I really wanted to talk to sort of the visionary behind this conference. And that has absolutely been Judge Henry. Um, he has a lot to say on the role that the legal profession can take right now. Um it's responsibility to step up in this moment. And I'm really excited to be bringing you the conversation that we just had. So thank you again to Judge Henry as well as the entire University of Washington School of Law team who made this conference and these conversations possible. Without further ado, thank you and enjoy the conversation. Thank you so much for joining us today, Judge. From your perspective, what are the most significant threats to judicial independence and the rule of law in our country at this moment?

SPEAKER_01 2:49

We know it's it's interesting. We're in the 250th year celebrating our Declaration of Independence. And one of the complaints that our framers had was that the colonial judges were not independent. The Crown controlled how they ruled. And if they didn't rule the way the Crown wanted, they'd lose their job and lose their salary. So our framers figured out very early that the judiciary dealt with topics that were really too hot for the political branches to handle sometimes, and they needed to have that independence. Alexander Hamilton, one of our most talented framers, wrote in Federalist 76 that the judiciary had neither sword nor purse. It didn't have the military that the executive has, it didn't have the budget that Congress has. It requires others to defend it. And judges can't even defend themselves because they have to maintain their impartiality when they decide cases. So it's up to the bar, it's up to former judges, it's up to all kinds of heroes and heroes to defend the third branch.

SPEAKER_02 4:05

So you mentioned, you said it's it's up to these heroes and heroes, as you put it. Um what what responsibility do you think lawyers, judges, and other members of the legal community have to publicly take a stand against what you just described as happening?

SPEAKER_01 4:24

Well, lawyers are officers of the court. They are required to meet a code of ethics. Each state has different ethical rules, but they're pretty similar, what lawyers must do and lawyers must comply with. Lawyers can't uh state things that are not true to the court. Uh they have to be have candor. Um they our our system really doesn't work without a code of ethics for lawyers. And we have to maintain that. And when you see that failing, as we've seen lately, um, all sorts of things run amok.

SPEAKER_02 5:09

So one of the sort of consequences of these attacks on the judiciary, on um both literal and and in the press, you know, we've seen this tremendous um loss of confidence in the judiciary according to public polling. Traditionally, as you know, the judiciary has enjoyed one of the highest rates of public confidence of any of our branches of government. But for the first time, we're really seeing that start to plummet, for lack of a better term. You what are the long-term consequences in this country if we have a public that doesn't trust a judicial system?

SPEAKER_01 5:46

It is true that for years, the judiciary always outpulled the other branches in terms of regard by the public. And it still does, but it has um it's you know it's a bit damning by faint praise because uh the executive and Congress are in very low numbers of approval now. But judges need to maintain the highest level of ethics. Frankly, there have been some ethical concerns with uh a couple of Supreme Court justices, uh and maybe more than two. And they need to be so uh so strict in compliance with ethics. They must, they must uh they must meet those standards. It is kind of a monastic lifestyle, really, uh a federal judge or a state judge. You you can't do things that you might just want to do. Everything has to be measured, and you have to be careful of expressing even your opinion casually, because it may cause people to think that you approach something with your mind already made up. And that it just doesn't work that way. You have to be able to hear both sides, or sometimes there are more than two sides, all sides of a question.

SPEAKER_02 7:09

Do you think the public, do you think us as the legal profession need to do a better job of educating the public about what it is you exactly said? Because there seems to be a growing perception that judges are uh full of bias, that they come into these rulings or they they sit on the bench with a huge range of political or personal agendas. I guess do you think that's true? And if so, what do we need to do to sort of combat that perception?

SPEAKER_01 7:38

Well, actually, the great majority of cases are decided uh overwhelmingly by um by number. Uh you there a lot of cases are decided uh unanimously at the Supreme Court level. And others are 7-2 and 8-1. Um it's the hot button issues that tend to divide courts, and those are just going to happen. And the court needs to state its reasons clearly and fairly. I'm not a fan of the shadow docket. I think these matters need to be discussed and in open. Um, but I do think the bar needs to l let people know that that judges don't just get to do what they want to do. The law constrains them. Uh I uh there are many opinions that I uh issued that I didn't personally agree with. The law led me to that conclusion, uh, and led my colleagues to that conclusion, and uh consequently I I I went with that conclusion. Most judges, I think the overwhelming majority of judges don't look at things from a political perspective. They try to be fair and open and and hear all sides to an issue. The bar does need to to to address this. They need to, and lawyers are there, there are lawyers, groups that are defending the judiciary, and the judiciary when it makes mistakes, it needs to be called out. And uh we're seeing some of that too.

SPEAKER_02 9:33

You mentioned members of the bar standing up um and speaking out. W for those former judges or attorneys who have not yet done so, um, who may be frankly afraid or hesitant to speak up, what what do you want to say to them directly right now about their obligations, you know, per the ethics code, but also just person to person about what we need to be doing right now?

SPEAKER_01 10:02

Well, I've talked with some lawyers that are afraid to speak out. Some of them are in some of the big firms, and you know, they uh, to my disappointment, did not feel that they could stand up to uh executive orders that prohibited them from entering federal buildings or tried to threaten them for uh representing clients that they chose. Um my father was a judge. I grew up learning from him. He was a veteran of World War II, and he taught me that everyone gets his or her defense in this country. That's uh what we stand for. And for the executive to say you can't represent people that I don't like is about as un-American as you can get. So um there are codes, uh there's a statement that is being circulated of things that lawyers stand for, and and a number of lawyers are signing those. Keep Our Republic has been uh active in promoting that, and we're seeing more and more lawyers having the courage to do what they need to do. And um particularly, I think it's uh impressive that so many former uh federal judges and state judges are coming, uh they're retired. There's they have no reason to do to stand up and and risk being uh personally attacked, uh, other than they just think it is the right thing to do and that it must be done.

SPEAKER_02 11:44

So what do you think? Obviously, there's there's a wider world of things, as you mentioned, that former judges can do for those who are still on the bench and may justifiably feel a lot more constrained in how they can speak publicly on these issues. What what advice or what words do you have for them in this moment?

SPEAKER_01 12:04

Well, a couple of things. First of all, both state and federal codes of ethics have been relaxed a little bit in many cases to allow judges to defend themselves. It's you have to be so careful, especially if a case is still pending. Um, but uh more and more the ethics codes are allowing judges to say, wait a minute, that's not what I wrote. That's not what I said, here's what I said, and here's why I said it. Here's the precedent that I followed. Um that's that's happening more. But by and large, I would just tell sitting judges, uh, we're trying to get your back. Uh a lot of us are lining up, signing amicus briefs, signing letters, uh speaking out in town meetings, uh doing podcasts. We're trying to help. And it is our responsibility as lawyers and as citizens to do this. So um we're in an era of name-calling, which is really unfortunate. Uh some member of the administration talked about Marxist, communist, radical, rogue judges. Well, I've met a lot of Marxist judges, but none of them in America. There just aren't any. You can't get through, all federal judges have to go through the the Senate Judiciary Committee and the investigation and the FBI, which was formerly a much more uh intense organization than it is now, but it's it's very difficult to be a federal judge. It you have to pass all sorts of milestones and markers. So um the I I would just tell this our our colleagues and former colleagues, we're we feel your pain. We're here to try to help. We want to to deal with civics, we want to talk to people. Um we have a little bit of extra time now because we're kind of long in the tooth and uh retired. And so uh we're not going to go gently into that good night. We're going to try to stand up and defend our former colleagues on the bench.

SPEAKER_02 14:37

I want to talk briefly about the symposium, which of course is the reason we are all we all gathered in Seattle uh earlier this spring, and of course, are are here back today as well. What was the inspiration for bringing together? It was an incredible group of former judges, attorneys, civic educators, just luminaries from across the legal profession. Um, what was the inspiration for for this event that we had at the University of Washington this spring?

SPEAKER_01 15:07

Well, it it um grew out of a breakfast that uh Dean Lawson, the vibrant uh wonderful dean here at the University of Washington, she and I had a breakfast, and we had a mutual friend that was trying to get me um out of retirement back into doing some uh some teaching and working with the university. And she asked me, you know, if if I were to become involved as a jurist in residence here at the University of Washington, what would I like to work on? And I said, Well, the the wolf at the door is the independence of the judiciary. And the judiciary is seeing um unparalleled attacks from from things like fake uh pizzas being delivered to your house and your children's houses with notes we know where you live. Um this is kind of new. I mean, all judges uh experienced some of this. I had a false anthrax scare when I was uh a judge. I was my secretary opened an envelope and white powder fell out with a note that we'd all been exposed to anthrax and we're going to die a gruesome death. It turned out it was talcum powder, and as you can tell, we didn't die. But um those things are not fun. Um, but it's at a level that's never been seen before. Uh physical uh attacks uh and attacks from members of the administration who uh when a court doesn't rule the way they want it to, they engage in personal attacks. Like even on the on the tariff case, uh uh some people in the administration criticized uh the administration's own appointees and said that they were on the take with foreign money, which is absurd. Uh you know, that that kind of rhetoric does not make America great. Uh it it doesn't make America good. It's not good for America.

SPEAKER_02 17:27

And can you, I mean, we that feels obvious to say, and of course, you know, every person, judge or not, deserves to be safe and secure at their job. No one should suffer these kinds of threats and attacks that the judiciary has had to endure um increasingly lately. But thinking more broadly, what is the impact on our government, on our way of life if we have a judiciary that is literally under attack, that is in fear of no longer being independent?

SPEAKER_01 18:05

Well when that happened to our framers, we had a revolution. Uh it it our form of government will collapse without a vibrant third branch. You know, it's like the the three-legged stool or the three ears of corn. You can't put two ears of corn together, but you can't you can put four, but you can you can put three. But if one of those isn't functioning, it simply won't work. We have learned as a species that power is a nasty aphrodisiac. Lord Acton said power corrupts absolute power corrupts absolutely. And our framers were brilliant. They developed three branches of federal government and then a state, a series of state governments, all work to keep uh the aphrodisiac uh power from getting out of hand. We have to have to learn to tell the government, hey, you have to follow the law too. That's the essence of the rule of law. I mean, the law needs to be public, it needs to to uh reflect human rights, but basically, the most important thing about the rule of law is that the government itself must follow the law.

SPEAKER_02 19:35

Well, you know, we've talked a lot about what judges can do, what members of the bar can do in order to support this third leg on the stool that is holding up our country right now, our third branch of government. Um, what what do you see of the role of nonprofits um and organizations that also joined in our symposium? Obviously, I'm here representing Keep Our Republic and the Article III Coalition. You know, what role can these organizations play in helping to support our judiciary?

SPEAKER_01 20:07

Well, we achieved at this conference a remarkable set of sponsors, and they all have their own audiences, and they can all communicate with those audiences. It was really important for us to work together because uh, as you know, we span the panoply of of of views. We were a very diverse group of people, Republicans, Democrats, independents, um, but all concerned about the fatality and the independence, the impartiality of the third branch. And uh as we talked about earlier, the judges have to have to do their job. They have to maintain that ethics and um and not every I and cross every T and not go to political fundraisers, not express their opinion about uh political matters, uh not accept lavish gifts or any kind of gift. Um it it's uh it it is a partnership. The nonprofits are doing a lot. The nonprofits are taking the lead in civics, uh in uh in in battling disinformation and and misinformation. Uh our our country runs with nonprofits, civil society, as some people call it. Uh Americans are really good at that. They there are no longer any great men and great women. They're just great committees and great organizations, great communities of of interest that that work together. Uh I I think the civil society in this country is is absolutely magnificent. No, no other country in the world, I think, has expressed such great uh humanitarian charity as the United States.

SPEAKER_02 22:19

So beautifully put, Judge. Um thank you so much for your time. Thank you for all the effort you put in to putting this symposium together that I've had the privilege of speaking with so many luminaries in the legal profession and civics education uh profession uh over these past couple of weeks that we've been uh rolling out these interviews. Um I look forward to an opportunity to um hopefully do it all again next year, if not sooner. Thank you again, everyone, for joining us on Keepers of Our Republic. If you don't already, make sure to subscribe, like, and follow. You can find video feed of our podcasts every week here on YouTube. And if you're more of an audio only person, you can of course find us on Spotify, Apple Podcasts, all the places where you get your favorite podcasts delivered every week. Until next time, my name is Brooke from Keep Our Republic. Thank you for listening, and we'll see you.

SPEAKER_00 23:13

If you like this episode, please share it on social media and tell your friends it's the best way for folks to find out about us. I hope you'll agree that our guest is indeed a keeper of the republic. If you want to learn more about how you can help keep our republic, stop on over to our website, keep ourrepublic.org.