Ensuring Judicial Independence
Model Guest Editorial on Independence of the Judiciary
More than two hundred years ago, the Founders of our nation created a form of government that is now the model for the world, especially for those new democracies that have emerged in recent years. These new democracies recognize the genius behind the system of checks and balances we have been blessed with for so long. The inherent advantage that at once separates and commingles the three different functions of creating, enforcing and interpreting laws among the three different branches of government is the key component of our unique and successful system of self government.
A fundamental part of this system, one that foreign leaders recognize as a master-stroke of government design, is the existence of an independent judiciary. Judges are bound to apply the steady hand of the rule of law and therefore are able to act without concern for the day-to-day whims of politics and public opinion, protecting individual liberties while preventing a tyranny of the majority.
For as long as our nation has existed, this separation of powers has worked to protect and defend our freedoms. Indeed, our progress as a society often has been forged by a judiciary free from partisan politics; a judiciary acting on the basis of what is just, not just what is popular; a judiciary able to protect ordinary citizens from politicians, big government, uncaring corporations and from each other.
Now, some self-serving politicians and misinformed citizens seem ready to destroy this delicate balance by attempting to inhibit judges from exercising their constitutional obligation to decide cases fairly and impartially. And why? Not because any of the threatened judges has been accused of wrongdoing or improper conduct sufficient for removal through impeachment or other disciplinary proceeding - but simply because of some highly publicized rulings with which some politicians and interest groups disagree. To place the judiciary under this standard would be to undermine the advantages and benefits to the public good that result from judges’ ability to serve as buffers against society’s excesses.
Imagine if judges could be removed from the bench simply because some powerful politicians disagree with their decisions? Would the falsely accused have a fair opportunity to vindicate themselves in court? Would the evils of segregation have been challenged? Would ordinary citizens have an impartial forum to seek redress against big business or big government?
The process of removing judges from office intentionally is difficult, precisely to ensure fair and impartial courts that are free to make unpopular decisions. For example, in the entire history of our nation, the House of Representatives has voted to impeach only 13 federal judges; only seven have actually been convicted in a trial before the Senate and removed from office. Wisely, no federal judge has ever been removed from office because Congress disagreed with the judge’s judicial philosophy or with a particular decision. And in every state, procedures exist to discipline or remove from office judges who act improperly.
But removing judges from the bench through campaigns of misinformation and innuendo, as has occurred in several states, does a disservice to the judiciary and, ultimately, to all citizens. Better that we should all strive to understand the judicial process as a means of promoting accountability than to undermine the benefits of a fair and impartial judiciary. And, of course, appellate courts, legislatures and executives each play an essential role in analyzing judicial decisions and can make changes as appropriate.
Removal of judges because of policy differences would interject chaos into our court system. Judges, whom we expect to decide cases based on a careful examination of the facts and thoughtful analysis of applicable law, would be subjected instead to the vagaries of shifting political currents. Decisions and opinions that are based on the rule of law and facts of a case resulting from days of hearings, hours of legal research and a great deal of careful scrutiny, would be dissected into sound bites and campaign commercials to be used in an impeachment proceeding or in the next election cycle. Our justice system is based on deliberate contemplation and should not be denigrated to replicate the now discredited "telephone justice" of the totalitarian regime - where judges must consult the Party leaders before rendering a decision.
Each year, the American justice system resolves some 100 million cases - simple, complex, routine, and extraordinary. We cannot lose the forest for the trees - most cases are resolved successfully - fairly and impartially. Allowing a few high profile, unrepresentative cases to guide our understanding of the justice system would be like having the tail wag the dog. American courts - the defenders of our most precious freedoms, the protectors of the individual against big government - are held up as examples for the rest of the world. We should commit ourselves to promoting better understanding and recognition of the American judicial system to ensure that our judges remain fair and impartial.
This resource kit contains materials from a variety of sources. Consequently, unless specifically stated, materials do not necessarily represent official policy of the ABA.
Updated May 2002.