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Fair and Impartial Courts: The Lynchpin of Our Democracy Bennett, Peter . The Brief ; Chicago  Vol. 37, Iss. 2,  (Winter 2008): 4-6,8-9.

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ABSTRACT To some extent, the Supreme Court's decision in Republican Party of Minnesota v. White, 536 U.S. 765 (2002),

accelerated this trend by broadening the realm of what is allowed in judicial campaigns. FULL TEXT As I write this column, it is Thanksgiving Day, a day on which we give thanks. On every day, we have much for

which to be thankful, and as lawyers each of us should be proud of the role that we fulfill in making our country

what it is and in upholding the rule of law.

The two planning years preceding the year as TIPS section chair provide an opportunity for each chair-elect to

reflect on where our profession stands. As I planned for this year, and while I assessed where I thought our

profession stood, I became increasingly concerned with the state of our judiciary and with the question of how

long the judiciary will be able to function fairly and impartially. While I have no doubt that our judiciary today fulfills

its constitutional obligations in this manner in the majority of cases, my concerns are focused on where this

institution seems to be headed. I am concerned about how our citizens-and for that matter, the world-perceive how

our judiciary functions. I am also concerned about what the state of our judicial system will be when our children,

such as my daughter Haley, become adults and start their own families.

Maintaining an independent judiciary has been a goal of our citizens, our courts, our profession, and the ABA

throughout history. In fact, toward fulfillment of the Association's mission, ABA Goal XI proclaims:

"To preserve the independence of the legal profession and the judiciary as fundamental to a free society."

And so, we dedicate this issue of The Brief to the issue of fair and impartial courts. Having a judicial system that

functions fairly and impartially is crucial to our law practices, to the needs of the clients we serve, and as stated in

Goal XI, to a free society.

Upholding the Rule of Law

We must always remember why our third branch of government stands apart from its other two coequal branches.

The judiciary does not exist to serve the public whim or will. Rather, the judiciary upholds the rule of law through

the application of the Constitution and the laws of the land to protect all citizens. Courts do not exist to serve the

majority, nor those-majority or otherwise-who are willing to spend the most money or make the most noise. Courts

are not political mechanisms either. While, in terms of governing the country, the majority generally rules, our

courts exist to ensure that we continue our tradition as a nation founded on the rule of law, that no person is above

the law, and that certain bedrock rights are never disenfranchised if the majority gets out of control.

If you accept my premise that our courts currently function fairly and impartially, then you may ask why I raise this

issue now. I am concerned about what the next generation will inherit if we do nothing to counter several

disturbing trends. The judiciary has never enjoyed complete popularity. How can it? It functions as arbiter in an

adversarial system. Every day, judges make decisions that undoubtedly disappoint the losing parties. And, when

judges are called upon to make difficult decisions in what turn out to be high profile cases, this disappointment is

open to amplification in the media and elsewhere.

In recent years, it seems as though the judiciary is under increasing attack from the disappointed. Its role as a

coequal third branch of government is at risk of being undermined permanently to suit ends not necessarily

consistent with a government founded on the rule of law. These attacks also threaten U.S. citizens' perception of

the independence of our judiciary, which may further erode the trust necessary for the judiciary to function as

intended by our nation's founders. Although a complete catalog of these attacks is beyond the scope of this

commentary, I will share some of the trends that concern me the most.

Politicization of the Process

The process of electing judges has become increasingly political and complex in the majority of our states where

judges stand for some form of election. Historically, judicial elections barely merited a blip on the radar screen.

Voter turnout is generally mediocre at best, and most voters may know little about the candidates. One could argue

that judicial candidates' views should not matter because once a judge takes the bench, we expect him or her to

put personal views aside and apply the law (to some extent tempered by one's philosophy). But what has changed

in recent years are the increasing amounts of money raised and spent on judicial campaigns and the nature of the

attacks leveled against some candidates, especially those judges with a track record of decisions who seek

reelection. To some extent, the Supreme Court's decision in Republican Party of Minnesota v. White, 536 U.S. 765

(2002), accelerated this trend by broadening the realm of what is allowed in judicial campaigns. Million- and

multimillion-dollar campaigns are fast becoming the norm; in some instances, the amounts of money needed for

judicial election exceed the amounts raised in some congressional campaigns. In just the past three years, judicial

campaign fund-raising reached record levels in 14 states. The role of special interest groups in these campaigns

also has reached a zenith, as has the role of out-of-state money. As well, the nature of some campaign advertising

paints a negative picture of an increasing number of judicial candidates that grossly distorts their real records.

Special interest groups, seeking to further their agendas, rally the masses to cast what amount to ill-informed

votes. And, at least at the state supreme court level, the size of the bench makes it relatively easy for these special

interests to pick their targets.

This trend disturbs me for many reasons. In a government premised on a check and balance system, justice

cannot be for sale, but this is exactly what special interest groups want to achieve by promoting the election of

candidates whose views align with their own. And, because of the dominance of the media in the electoral process,

running for judicial office today requires all candidates to seek sources of campaign funding.

Let's face it. We contribute to candidates for election when we hope their views will align with our own. But the

system goes awry when extreme amounts of money are given with an expectation of something more than

realization of a hope. Those elected to judicial office cannot serve two masters. A judge must be a servant to the

rule of law and not to persons whose money propels the judge to the bench. For better or worse, the decisions of

some elected judges are consistent with the interests that supported them as candidates for the bench. Our hope

is that these judges will be guided by the rule of law, but, regardless, the influence of money taints the perception

of whether they can exercise independent judgment. Given that this taint is borne out by public opinion research,

the deeper problem becomes obvious. Regardless of whether judges function independently, the citizenry's

perception of independence erodes along with our confidence in government when we no longer believe that there

is a true check and balance in the operation of our judiciary.

When our nation was founded, judges were immune from the direct political process, and for good reason. Our

predecessors made judges apolitical based on the theory that insulating judges from the will of the population was

essential to maintaining a fair and impartial judiciary and thus to upholding our republican form of government.

Beginning with the Jacksonian era, the popular will began to win out as many states created some form of elected

judiciary. With this transition, a problem of political pressure on the judiciary began that seems now to have

reached unprecedented proportion.

Legislative Issues

Another disturbing trend is on the legislative front. We are witnessing with greater frequency proposals to change

the judicial system. Perhaps the most astonishing example to date is the 2006 "JAIL for Judges" ballot initiative in

South Dakota. There, citizens were asked to amend the South Dakota Constitution in a manner that would make

judges criminally responsible for their decisions on the bench and thus deprived of true judicial immunity. This

provision would have allowed a special grand jury process to convict and sentence judges whose decisions

violated certain norms. Several other states have suffered efforts to create similar initiatives. In Colorado, a ballot

initiative was proposed to amend the state constitution to create term limits for judges. Other states have

entertained constitutional amendments that would allow judges to be recalled. Out-of-state special interest groups

fund many of these efforts to influence the composition and role of the judiciary.

Another legislative issue is funding, or perhaps more to the point, the lack thereof. In some state courts, a lack of

resources requires judges to conduct their own research and even to do their own typing. When clerks are

available, their services may have to be shared. The same goes for administrative services. Some judges in my

home state of Maine are required to consider their home as their office, and the state pays them mileage to hear

cases even at the local courthouse. Security measures are outdated and lax not because they are not needed but

because legislatures do not appropriate the funding necessary to provide for the safety of those who enter our

courthouses. Each one of these situations contributes pressure to the judiciary's ability to function fairly and

impartially and demeans the role the judiciary plays in our government.

But worse than all of these legislative shortcomings is the fact that the compensation of judges across the

nation's state and federal benches is falling to all-time lows when adjusted for inflation. Almost every judge could

generate more income in private practice than the salary he or she earns on the bench. This might be acceptable if

judicial compensation was substantial. But judicial pay is basically anachronistic. When law clerks can enter

private practice and earn as much as the judges they serve, the system no longer functions as envisioned. Judges

are being driven from the bench in record numbers. On the federal level, where judicial pay is at the top of the

scale, the number of judges leaving to return to private practice is growing. The acceleration of departures is

happening in large part because the salary of a judge does not begin to equal the value of the service rendered.

Judges are now called upon to struggle with the conflicting fidelities of providing well for their fami lies or of

spending the remainder of their career on the bench. For example, Judge Alfred Lechner resigned from the United

States District Court for the District of New Jersey because, with three children attending college, his after-tax pay

was less than his kids' tuition costs. While judicial salaries often are benchmarked with those of legislators, judges

work longer hours and, at least until now, are not known for using their public service to gain private advantage

after leaving office.

In addition to the financial dilemma created by the legislative branch, U.S. citizens face an escalating problem with

legislators who fail to show fair and appropriate deference to the judicial branch. For example, during litigation of

the (Teri) Schiavo case, one prominent Republican leader openly said he would investigate the possibility of

impeaching any federal judge who sided with Michael Schiavo in his efforts to end his wife's life.

Such threats can only have one overriding purpose: to intimidate the very judges who are called upon to apply the

rule of law in very difficult and emotionally challenging cases.

Attacks on the Courts

Another disturbing trend concerns the violence that has invaded our courts. Violence has always been a concern,

but recently it seems that violence has increased or is more publicized as a result of our 24/7 news cycle. The

murders of the husband and mother of United States District Court Judge Joan Lefkow by a disgruntled plaintiff

who then killed himself or the recent violence in the Fulton County, Georgia, courthouse have their own impact on

the ability of our courts to function fairly and impartially.

Our media do not help matters, but I am especially critical of those in our media who have legal training and allow

their training to qualify as expertise to be used to demean the courts. The use of so-called news reporting to attack

a fair and impartial judiciary does little to further the rule of law. Instead, it undermines the public's confidence in

the judiciary. While bad judges and bad decisions deserve to be exposed, more than that is happening here. I

believe the goal behind at least some of the reporting is to influence public opinion. One cannot underestimate the

impact of sound bites such as "activist judge" or "legislating from the bench" on the public's perception of the

administration of justice. And what exactly is an activist judge or legislating from the bench?

Finally, as lawyers, we sometimes make things worse. We function within a system that is based on winners and

losers, and it is high time that we stop blaming the judge when a case goes "the wrong way." We send a dangerous

message to our clients when we do so. It is also time to stop leading clients to believe that a lawyer's relationship

to a judge can influence the outcome of a matter, or that a judge rules for or against a party because he or she

likes or dislikes the lawyer. We all hope that this is not how the system works. But, when we blame the judge or

suggest that favor makes a difference, we demean the integrity of the entire bench and, ultimately, of our

profession.

Historic Roots and Lessons

We must never lose sight of the fact that the concept of an independent American judiciary originated deep in the

roots of our nation's history. When the colonies were governed by royal governors, the colonial judges served at

the governors' pleasure and thus at the pleasure of the king of England. A colonial judge who issued a decision

that the king found disagreeable was subject to removal from office, making judges dependent on the king for their

livelihood. Thus, the system of colonial judging was a political systern, albeit one with a singular electorate. The

acrimony produced by the system was recited as a grievance against the king in the Declaration of Independence:

"He has made judges dependent on his will alone for the tenure of their offices, and the amount and payment of

their salaries." The authors of the U.S. Constitution decreed in Article III that judges are deemed to serve during

"good behavior" with compensation that cannot be diminished while they hold office. Interestingly, it has been only

since 1805 that Article III judges cannot be impeached on political grounds. The law was so enacted to ensure that

judges have the immunity necessary to make decisions without fear of losing their jobs.

Applying the law is not an easy task. As we know, multiple judges considering the same case may reach different

conclusions as each judge discharges his or her duty to the law. Since the public does not understand as well as

lawyers do how the system functions, unpopular decisions can lead to criticism and occasional outrage. Our

courts, however, were not created to enforce the will of the majority. Courts cannot function effectively if judges

have to look over their shoulder and worry about the reaction any particular decision may elicit. We must continue

to insulate our courts from such a scenario.

Consider for example whether Brown v. Board of Education could have been decided as it was if the justices of the

Supreme Court had been serving subject to public whim. While we today take this decision (and many others) for

granted, at that time, the Court broke new ground perhaps attainable only by a completely independent, fair, and

impartial judiciary. Against the milieu of the pre-civil rights era, this decision required courage. And in its wake, the

nation endured outrage from those who were disappointed. One of the more immediate reactions was the

introduction of legislation to overhaul the Supreme Court and require that justices be elected rather than

appointed, which would have made officers of our highest court subject to the whim of the majority. Impeachment

threats were leveled primarily against Chief Justice Earl Warren. The difficulties encountered in Brown's

implementation, beginning in many cities and towns at school-house doors, are lessons our country will never

forget, and the ability of the Court to uphold the law is what made it possible.

A System Worthy of Defense

While decisions such as Brown, or Roe v. Wade, or Bush v. Gore elate some and anger others, the beauty in our

system is that in the wake of each ruling, our government continues to function. It does so because at some

instinctive level all citizens still understand the need to have, and the respect to be accorded to, an independent

judiciary. Our system may not be perfect, but its endurance and resiliency remain the envy of the world. We don't

have to look far to find present-day examples of powerful countries struggling to achieve independent judiciaries.

Take Egypt, an advancing country to which the U.S. gives $2 billion in aid annually. When Egyptian citizens support

the demands of the judiciary to exercise independence from President Mubarak, he dispatches riot police to beat

and thus silence the demonstrators. Or, take recent events in Pakistan, another "friend" of the United States, where

President/General Musharraf fired his supreme court, placed judges under house arrest, and beat and jailed

thousands of lawyers who protested his actions, all in an attempt to maintain the supposed legitimacy of his rule.

So, where is TIPS going on this issue? Our section has joined with the ABA Standing Committee on Judicial

Independence and plans to create a significant grassroots education project through our newly created Task Force

on a Fair and Impartial Judiciary, chaired by Berry Crowley, so that our generation and the generations that follow

can better understand the importance of a fair and impartial judiciary and can prevent it from being taken down the

wrong path.

We began this project in October in a very fitting place, Palm Beach County, Florida, where TIPS convened a

program entitled "Defending the Rule of Law in America: Countering Attacks on Our Judicial Institutions." This

program was made exceptional by the group of speakers who convened on a single stage to address the subject.

TIPS drew upon leadership from the American Bar Association, the American Association for Justice, and the

National Bar Association. The panel also included Chief Justice Fred Lewis of the Florida Supreme Court. Through

generous sponsorships from the Dave and Elaine Darwin Fund and our section's primary sponsor, Thompson West,

we have been able to create a DVD and a CD-ROM compendium of the program and other topical materials. Our

goal is to engage in an educational effort directed at lawyers, community groups, and students to continue the

process of educating America about why the judiciary must be enabled to operate beyond politics and public

opinion. It is a long-term, generational project that we must begin now if we are to succeed in countering the

critics.

The Tort Trial and Insurance Practice section includes more than 35,000 members representing the interests of

plaintiffs lawyers, defense lawyers, and industry representatives. We are uniquely positioned to serve as a voice,

not only for the legal profession, but for our courts. And, this is a project that we are eminently qualified to carry

out. Together we can make a difference that will matter.

Albert Einstein said, "You cannot achieve a new goal by applying the same level of thinking that got you where you

are today," which inspired our decision to begin this project over one year ago. To maintain the integrity of a fair

and impartial judiciary, lawyers and judges need to step forward to answer the tough questions and deliver

messages that educate society about what at its core is the lynchpin of our democracy. I encourage you to join our

project.

Do we want judges preoccupied with thoughts of how their decisions will influence their ability to fund raise during

the next election cycle or by any other influence that takes their eye off the rule of law? I think not.

If we do not accept our obligation as lawyers to defend our courts and do something now about this growing crisis,

eventually justice will no longer be blind.

Sidebar

Courts cannot function effectively if judges have to look over their shoulder and worry about the reaction any

particular decision may elicit.

Sidebar

TIPS is engaged in an effort to educate America about why the judiciary must be enabled to operate beyond

politics and public opinion. DETAILS

Subject: Judiciary; Judicial elections; Judges &magistrates; Politics; Legal professions; Law;

Courts

Publication title: The Brief; Chicago

Volume: 37

Issue: 2

Database copyright  2018 ProQuest LLC. All rights reserved. Terms and Conditions Contact ProQuest

Pages: 4-6,8-9

Number of pages: 5

Publication year: 2008

Publication date: Winter 2008

Section: VIEW FROM THE CHAIR

Publisher: American Bar Association

Place of publication: Chicago

Country of publication: United States, Chicago

Publication subject: Law

ISSN: 02730995

Source type: Scholarly Journals

Language of publication: English

Document type: Commentary

Document feature: Photographs

ProQuest document ID: 209808870

Document URL: https://search.proquest.com/docview/209808870?accountid=35812

Copyright: Copyright American Bar Association Winter 2008

Last updated: 2010-06-08

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