Ensuring Judicial Independence

TALKING POINTS FOR SPEECH
JUDICIAL INDEPENDENCE
March, 2002

INTRODUCTION

Judicial Independence
Judicial Campaign Money
Problem Bigger than Money
Public Education
A Call to Action
Conclusion

• Regardless of the method used to select state judges across America, every effort must be made to maintain the independence of our judiciary.
• Judicial independence means that judges can decide cases before them without fear or favor, based on the law and the facts of that particular case.
• It means judges have the authority to exercise their constitutional obligation to make hard decisions, unpopular decisions, without concern for retribution, personal or professional.
• Our democracy depends on independent courts where decisions are based on the facts and the rule of law.
• I remind you of this because the independence of state judiciaries across the nation is being threatened like never before in this year’s election.

• Special interests are pouring millions of dollars into targeted judicial campaigns.
• And a new national survey shows that three out of four Americans perceive that campaign money influences judicial decisions.

• The President-elect of the American Bar Association, A.P. Carlton, is particularly concerned because this perception threatens the public’s trust and confidence in our state courts.

• When he becomes ABA president in August, he intends to convene a blue-ribbon commission to review state judicial selection in the 21^st century.

• This comprehensive examination of judicial independence and accountability will include tenure, compensation, ethics and other institutional factors on the path to the bench.

• In states where judicial elections are being held this year, the ABA is asking bar associations to monitor campaigns closely and be prepared to act.
• Regardless of the method of judicial selection used in individual states, all of us should consider this year an opportunity to educate the public on the proper role of the judiciary in our democracy.
• An impartial judiciary is a cornerstone of our democracy, one of the guiding principles that sets us apart from other nations of the world.

Judicial Campaign Money         Back to top

Enormous spending on state judicial campaigns threaten the independence of our state judiciary and ultimately every citizen’s right to a fair hearing in court.

• There was a 61 percent increase in total money raised by State Supreme Court candidates since 1998, according to a recent study.
• According to "The New Politics of Judicial Elections," the amount of money raised for Supreme Court candidates doubled between 1994 and 2000.
• In Alabama, candidates for the Supreme Court raised 13 million dollars– an average of 1.2 million dollars each.
• Special interests are pouring millions of dollars into judicial campaigns to further their own interests.

• Usually there is no public disclosure of the amounts or the sources of money.
• The trend is for special interests to produce and air television commercials, usually "attack" ads, against a candidate they oppose.
• Furthermore, the survey shows 9 in 10 Americans think these special interests are trying to shape public policy to their own ends.

• As a result of the soaring campaign costs, judges feel pressure to raise money.

• According to a survey conducted for Justice at Stake, nearly half of the judges feel pressure to raise campaign money.
• And it is even higher for judges of appellate courts.
• Many of us are aware of the pressure of these escalating costs from first-hand experience – we have either been asked to contribute or we have been asked to help solicit others.

• Is it any wonder that three of every four people believe that campaign contributors can influence judicial decisions?
• And according to a survey of judges, even one judge in four believes contributions influence judicial decisions.

• Although the skyrocketing costs of judicial campaigns is a major concern, the problem facing courts is not limited to money.
• When we talk about the judiciary, a great many people think about the U.S. Supreme Court or other federal courts.
• But the real threat to the judicial independence is in our state courts. Cases in state courts outnumber those in federal courts by a margin of 300 to 1.
• Here’s are some examples of the problems state courts face:

• 90 percent of the voters – and 87 percent of the judges – are concerned because voters do not have enough information on judicial candidates and they believe judges are selected for reasons other than their qualifications.
• In many jurisdictions, compensation is an issue. There is a disparity issue-in private practice, average salaries of big-firm partners in urban areas increased dramatically while judicial salaries little if at all. In some areas, beginning lawyers make more than experienced judges.
• Selection methods deter qualified applicants. Some lawyers simply believe the process is too political.
• In some areas, citizens think judges are not being held accountable. We in the bar might think the criticism is unwarranted, but sometimes people think nothing is done to dismiss judges from the bench.

• The public opinion poll I referred to, a national poll conducted for Justice at Stake, has some numbers that are disturbing.
• Most people – 62 percent – believe there are two systems of justice, one for the rich and powerful, and one for everyone else.
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• 90 percent of African-Americans believe there is a 2-tier system of justice.
• And 87 percent of judges think this 2-tier perception is of concern.
• The qualifications of individual judges are another issue. 90 percent of the voters and 87 percent of the judges are concerned because voters do not have enough information on judicial candidates, and therefore they believe judges are selected for reasons other than their qualifications.

WE MUST EDUCATE THE PUBLIC ABOUT HOW JUDICIAL CAMPAIGNS ARE DIFFERENT

• Judicial campaigns are different from other campaigns for public office.
• Judicial candidates are prohibited from committing themselves in advance on matters likely to come before their courts.
• To do otherwise would create at least the appearance of partiality and threaten the rule of law.
• Judges are different than other public officials.

• Unlike others, judges have no constituencies.
• As we know, they make decisions based on the rule of law, not popular opinion.
• Or at least they are supposed to. Some of you may have read "The Summons," yet another bestseller by John Grisham. In his new book, one of the characters, a judge says "A judge who counts votes before the trial should burn his robe and run for the county line."

• We should remind our friends and neighbors about these differences. We can speak to civic organizations and students and help educate on the judiciary.
• This distinction between judicial campaigns and other political campaigns is an important one. The U.S. Supreme Court is hearing a Minnesota case – The Minnesota Republican Party v. Kelly – which might establish new guidelines on how states can regulate judicial campaigns.

• The American Bar Association filed an amicus brief on behalf of the respondents.

• At issue is Minnesota’s "announce clause" which has the same scope as the corresponding provision in the 1990 ABA Model Code of Judicial Conduct.
• The ABA Code’s prohibition is narrowly tailored to achieve three compelling state interests

• Maintaining judicial independence and impartiality
• Preserving public confidence in the judiciary
• Guaranteeing due process to litigants.

As early as 1924 the ABA’s Model Code cautioned that a candidate "should not announce in advance his conclusions of law on disputed issues to secure class support."

• Permitting judicial candidates to commit or appear to commit themselves in advance on matters likely to come before their courts would create at least the appearance of partiality in the decision making process. The ultimate result would be to undermine the public’s trust in the judiciary’s independence and threaten the rule of law.

What can we do? OUR BAR ASSOCIATION CAN MONITOR JUDICIAL CAMPAIGNS TO ENSURE THAT CAMPAIGNS ARE CONDUCTED IN SUCH A WAY TO HELP KEEP COURTS FAIR AND IMPARTIAL.

• The American Bar Association has provided us with a "Top 10" list for possible action steps. Here are ideas for us to consider:

• Establish a program to defend the judiciary from unwarranted or misleading public criticism. Tennessee has a model program on how to promote public awareness for the importance of an impartial judiciary.
• Distribute a "judicial campaign" card for voters, a card in the style of a bookmark with concise information.
• Create a judicial campaign oversight committee.
• Create education programs for judicial candidates on the Canons of Judicial Conduct.
• Develop outreach programs on the importance of judicial independence. Model programs are available from the ABA.
• Participate in Judges Network, an Internet-based information site on outreach programs. www.abanet.org/jd/judgesnetwork
• Partner with civic organizations to sponsor forums on justice system issues. A copy of " . . . And Justice for All: Ensuring Public Trust and Confidence in the Justice System" explains how to organize such a forum. Copies are available from the ABA.
• Establish a Citizens Conference. Details available based on a model program in Oregon.
• Promote a system of public awareness for the importance of an impartial judiciary. Tennessee serves as a model program.
• Work with "The Constitution Project" on its "The Higher Ground Standards of Conduct for Judicial Candidates. Copies are available.
• Subscribe to the "Court Pester E-lert," a service of the Brennan Center that delivers news clips regularly on judicial issues.

• The trend in judicial campaigns is alarming: The negativity that has dominated the campaigns for the legislative and executive offices is emerging in judicial campaigns.
• We must be on guard against the perception of impropriety in the judiciary as more money is spent on judicial campaigns.
• The reform effort is gaining momentum in state legislatures. The group I mentioned earlier, Justice at Stake, consists of 34 partners, including the American Bar Association and the League of Women Voters.
• The ABA at its February meeting did reaffirm its support for merit selection of judges. However, for states that continue to elect judges, the ABA recommended public financing of judicial campaigns. Public financing bills have been introduced in a number of state legislatures across the country as part of this effort to improve state judicial selection.

• In more and more states, misleading and partisan attacks on judges’ decisions are bringing politics into the courtroom. This must be resisted.
• Unfortunately, most people believe there are two systems of justice, one for the rich and powerful and one for everyone else. We must strive to improve our courts.
• Judges are different than other public officials. Unlike others, judges have no constituencies. They make decisions based on the rule of law, not popular opinion, and they must remain fair and impartial. And we must work hard to help maintain judicial independence.

What can we do? In states that elect judges, we can:

• Educate voters during the campaign while at the same time minimizing the influence of money in judicial campaigns.
• Discourage certain kinds of campaign conduct such as "attack ads" which unfairly criticize judges and undermine the public’s confidence in the judiciary.
• Encourage special interests, political parties and even some candidates to reduce their inflammatory rhetoric in judicial campaigns regardless of their free speech rights because such rhetoric threatens public confidence in the judiciary.
• Take action on any of the "Top 10" suggestions I mentioned in order to ensure that campaigns are conducted in such a way to help keep courts fair and impartial.
• Explain to our friends and neighbors the differences between judicial campaigns and other political campaigns.
• Explain the proper role of judges in our society and remind citizens they have a right to a fair and impartial judiciary.
• Never lose sight of the foundation upon which American society is built – the rule of law.

• The price of remaining silent is too steep a price to pay – it could amount to the loss of confidence in our judiciary.

Thank you.

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.

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