Generally, people can fly or display whatever flags they wish. But when you're a judge, there can be consequences. This was news to New York town justice Thomas F. Rathbun. Rathbun has served as the town justice for Salisbury Town Court in Herkimer County since January 1, 2002. It is an elected part-time position, and Rathbun is not an attorney. He is now no longer a judge, either.
A Lot of Poor Choices
Since 2005, Rathbun has displayed a statue featuring the Confederate flag on his desk, visible from the courtroom whenever his door was open. The New York State Commission on Judicial Conduct recently held that this display undermined the judiciary's integrity and created an appearance of racial bias.
But that wasn't all. He also failed to complete judicial certification training, remit court funds on time, adjudicate an eviction case, and cooperate with an investigation into his problematic social media posts, such as extremely partisan posts and one that read, “I’m proud to be white."
The Appearance of Neutrality
Judges must maintain both neutrality and the appearance of neutrality in the courtroom, even part-time town justices. While some argue that the Confederate flag is a symbol of heritage or regional pride, it is still an extremely controversial symbol that hate groups and white supremacists often use.
For example, the Confederate Flag became a symbol used to support segregation during the Civil Rights movement. Despite its initial use on Memorial Day to commemorate fallen Confederate soldiers in the late 1800s (it was initially a battle flag, not the official "stars and bars" of the Confederacy), its use has morphed in the 160+ years since Virginia rebelled against America. If you do not identify as Caucasian and see a Confederate flag on the desk of the judge you are in front of, you would understandably feel like the odds were stacked against you.
Be Careful, Judges
This isn't the first time a judge has been criticized for displaying an inappropriate flag, of course. Supreme Court Justice Samuel Alito was criticized for displaying an upside-down American flag, commonly known as a distress symbol, shortly after January 6, 2021, and an "Appeal to Heaven" flag in July and September 2023.
The judiciary is, and always has been, the most neutral of our three branches of government. Judges need to maintain an environment that fosters trust and impartiality. For judges with a flair for decorating, no one has ever gotten in trouble for a respectfully displayed American flag.
As for Rathbun, he has ignored the matter since its inception, and now he can post on Facebook whatever messages he likes.
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