At risk: Judicial independence

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Is the independence of the judiciary at risk?

This was the title of a special town hall meeting before the American Bar Association House of Delegates on Aug. 9, and the short answer to that question appears to be yes.

Indeed, on the previous day, the delegates unanimously passed a resolution affirming the belief that a fair, impartial and independent judiciary is fundamental to a free society, and calling on all Americans, including elected officials, to support and defend the judiciary and its role in maintaining the fundamental liberties under the U.S. Constitution.

The delegates also heard the ABA’s new president, Boston, Mass. attorney Michael S. Greco, issue a call for more public awareness about the role of the judiciary within the three branches of government, and emphasizing the independence of the institution. He additionally announced the creation of the Commission on Civic Education to improve the public’s understanding of the government’s functions. It will be co-chaired by Supreme Court Justice Sandra Day O’Connor and former U.S. Sen. Bill Bradley of New Jersey.

"What really distinguishes America from countries where freedom suffers is an independent judiciary, whose judges aren’t controlled or fired by the executive branch or the legislature," Greco said, later adding, "If we do not protect our courts, our courts cannot protect us."

In addition, several of the delegates wore little yellow gavels, as a sign of their commitment to an independent judiciary.

‘Activist Judges’?

Harvard Law School Prof. Charles Ogletree led the panel presentation. Ogletree characterized the topic as very timely, in light of the rapidly approaching confirmation hearings in the Senate for U.S. Supreme Court Associate Justice nominee John Roberts.

A prospective colleague on the court for Roberts, Justice Stephen Breyer, was on hand to quell some of the alarmist tone present in the room. Breyer, the most recent justice to join the high court 11 years ago, disagreed with the Ogletree’s assertion that "things have never been worse" for federal judges.

Tensions among the branches always exist, he said. Moreover, sometimes criticism of high court decisions is warranted, because although the court tries its best, Breyer frankly admitted that sometimes, "We don’t always get it right."

Still, most Americans do get it, Breyer maintained. They understand that in the long run, an independent judiciary is the best way to protect citizens’ individual liberties.

But it is disheartening for judges when they feel pressure on their courts, in the form of institutional criticism, diminished budgets or meager pay, he acknowledged.

For his part, fellow panelist Lindsey Graham, a Republican U.S. Senator from South Carolina and former practicing attorney, reported that his office has received several thousand communiqués in recent times about "activist judges," and more particularly, the need to rein them in.

Lifetime Appointments

Nonetheless, as long as lifetime appointments are in place for the federal judiciary, there is no major threat to judges’ independence, Graham said. The more real fear, he stated, is that the quality of the federal bench might diminish over time, because as the scrutiny is turned up during the appointment process, fewer individuals will be willing to put themselves and their families through it.

A challenge to lifetime appointments will no doubt be made in his lifetime, Graham predicted — either with mandatory retirement or some other re-evaluation process. He would oppose either initiative, regardless of how popular they might be with the general public.

When entering a courtroom, he asked, "Would you want someone who worries about what’s right and fair in your case, or someone who has to look over their shoulder?"

Former U.S. Solicitor General Theodore Olson, who successfully argued Bush v. Gore in 2000, agreed that news stories about "activist judges" have become everyday events.

"I don’t like the term ‘activist judge,’" he said, "because everyone uses that term for a decision they don’t like. It’s a label that’s just not useful."

Moreover, by its very nature, the federal Supreme Court will always engender controversy, as its decisions affect life and death matters, "and even the PGA tournament," he quipped.

"When the Supreme Court makes a decision and it involves the Constitution, it means it’s off the table, politically, and that angers some people," Olson ex-plained. For that reason, the confirmation of a new justice tends to turn into a "mini Constitutional Convention" every time, which is problematic.

Senate Showdown

Graham conceded that past showdowns in the U.S. Senate over federal judicial appointments have been "red hot."

"It’s politics at its rawest level," he said. "But I’m optimistic that the ‘nuclear tiger’ has been put back in the cage, because if we ever go down that road, we won’t go back."

Republican U.S. Senator Arlen Specter of Pennsylvania has publicly stated that he plans to press Roberts on some of his past decisions.

Olson observed that the senators have the right to ask whatever questions they want, but stressed that Roberts, or any judge in a confirmation proceeding, cannot answer questions about political issues, even those phrased as hypotheticals. It’s too hard for a judge to accurately predict what he or she would do on a case in the abstract, without the benefit of actual facts, briefs and arguments to consider.

Graham predicted that the upcoming confirmation hearings for Roberts will be "heated but appropriate." The public will be watching the process closely, and in a sense, the Senate is also on trial in their eyes, with regard to the way the lawmakers conduct themselves.

As for the issue of federal judges’ pay, Ogletree commented that some first-year associates, or even law clerks, earn more.

Breyer agreed that judges’ pay has declined, in real terms, since his law-school graduation. But most Americans aren’t very sympathetic on this issue, as they earn less.

That’s certainly true in South Carolina, said Graham, where the average income is less than $20,000 per year. Still, he would like to increase judicial pay, to attract more of the brightest and best to the judiciary.

Judicial compensation is something that everyone in the room should do something about, remarked Olson, urging ABA members and the legal community as a whole to put pressure on their elected representatives on the matter.

Breyer echoed that call, not just for judges’ pay, but also on the judicial independence as a whole.

"Maybe I’m naïve, but I believe in communication," he said. Time works against most lawyers — everyone’s too busy lately. But talking to high school students, lawmakers, or whomever about the independent judiciary really can make a difference.

Closer to Home

Madison lawyer Daniel W. Hildebrand, an ABA Board of Governors representative to the House of Delegates, said he sees very few threats to judicial independence in Wisconsin.

"We have a system of electing judges, and our citizens in general do not vote for judicial candidates who are not willing to decide cases based on the facts and the law.

We have a high-quality electorate, which generally is well-reasoned and well-educated. But I am disturbed about ‘litmus tests’ that people agitate for in Washington D.C. for federal judicial nominees," said Hildebrand, of DeWitt, Ross & Stevens.

Likewise, Richard J. Podell, of Podell & Associates in Milwaukee, observed that the independent judiciary is not endangered in Wisconsin. "But we always have to be vigilant," he cautioned.

Perhaps the only recent threat he can recall is a five-page letter from Rep. F. James Sensenbrenner to Chief Judge Joel Flaum, criticizing the Seventh Circuit Court of Appeals in a sentencing decision. Sensenbrenner, an attorney who chairs the House Judiciary Committee, should know better, Podell opined.

Podell, Wisconsin’s ABA delegate, said he’d like to see merit selection, rather than election, for the state’s judges, but he is not optimistic that that will happen anytime soon.