Is the independence of the judiciary at risk?

In a well-received, and first of its kind, panel discussion before the ABA House of Delegates, titled, “Is the Independence of the Judiciary at Risk?,” Republican Senator Lindsey Graham of South Carolina joined Supreme Court Justice Stephen Breyer and former Solicitor General Theodore Olson in sharing their thoughts on current hot button issues including “activist judges,” politicization of the judiciary, the propriety of citing foreign legal opinions in Supreme Court cases, and changes in the court system. Harvard Law Professor Charles Ogletree moderated the session during the 2005 Annual Meeting.

Addressing the question that framed the debate, whether the independence of the judiciary is threatened, Justice Breyer went to the core question — “why do we want judicial independence?” In answer, he pointed to the role of independent judges in protecting individual liberty as well as property, and said, “Those things are tied both to human freedom and to prosperity in a nation.”

Sen. Graham expressed his belief that the real danger isn’t so much to the independence of the judiciary, at least at the federal level where the appointment is lifetime, as to the quality of judges on the federal bench, pointing to the confirmation process. “I really do believe you’re going to have to ask yourself this question as a want-to-be judge,” he said. “‘Am I willing to put my family and myself through this process?’ And I think more and more people are going to say no unless we in the Senate stand up to the special interest groups.”

Sen. Graham didn’t mince words when he stated that people should be able to voice their opinion about judges and their decisions, but said that, “having your say doesn’t mean you can run someone over.” In a later speech to the House of Delegates, incoming ABA President Michael S. Greco expressed similar thoughts. “Too many Americans are losing sight of the fundamental values that have made this nation great,” he said. “Ironically, while American lawyers—and the American Bar Association—are helping to build independent judicial systems in emerging democracies around the world, our own courts are under unprecedented attacks.”

When asked about tensions among the three branches, Justice Breyer agreed that there were tensions, but noted that a certain degree of tension is natural. Sen. Graham, in response to a question from the audience, shared his thoughts on the tension between the judicial and legislative branches, and specifically about the debate on the nomination of John Roberts: “I think and hope that it will be ‘appropriately confrontational,’” he said. “In the end, the ‘appropriate’ will hopefully win out.”

Former Solicitor General Olson, when asked about the current buzz phrase “activist judges,” stated that he doesn’t like the term. “Everybody uses that term for a decision that they don’t like,” he said. “It’s a label that is not useful.” Justice Stevens admitted fallibility of his branch in stating that “not all of our decisions are right. We don’t have some special insight.”

Watch and listen to the panel program here, or read the transcript here .

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