Independence of the Judiciary Model Speech More than two hundred years ago, the Founders of our nation designed a constitutional democracy based on a system of checks and balances, 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 an absolute master-stroke of government design, is the existence of an independent judiciary—you can't have checks and balances without an independent judiciary—judges who are able to act without concern for the day-to-day whims of politics and election-focused politicians, to protect every citizens' individual liberties and to prevent a tyranny of the majority. Judges help make the American constitutional design of government work for all of us. When legislatures created poll taxes and literacy tests to screen African Americans out of the voting booth, courageous judges recognized the right of minorities to participate in democracy. When the executive chips away at our freedom by prosecuting indiscriminately or imposing overly burdensome regulations, judges protect our rights against big government. Our ability to vindicate our selves and our free enterprise system exists in the courts of law. For more than two centuries—for as long as our nation has existed—this separation of powers has worked to protect and defend our freedom. 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 right and just, not what is popular; a judiciary able to protect the ordinary citizen from politicians, big government and, sometimes, even 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 obligations of deciding cases fairly and impartially. And why? Not because any of the threatened judges have been accused of wrongdoing or improper conduct sufficient for removal through impeachment or other disciplinary proceeding but simply because of some highly publicized rulings they have made that some politicians don't agree with. To place the judiciary under this standard would be to undermine the advantages and benefits that inure to the public good from judges being able 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? What is a judge's job? A judge is called on to interpret the law; to keep the courts working and decide cases; to explain legal procedures and make procedural rulings; to mediate among parties to settle disputes; and to make fair and impartial decisions, listening to the facts and applying the law, as necessary. Think for a minute about the qualities you want a judge to have. What would you want a judge to bring to your case? In a moment I'm going to ask you to compare your vision of a good judge with how judges in many other parts of the world are forced to work. The process of removing judges from office intentionally is difficult precisely to ensure fair and impartial courts with judges who are able to make difficult sometimes unpopular decisions. It is not intended to be based on simple disagreement with the judgment that is constitutionally required each day in the performance of his or her job. For example, in the entire history of our nation, the House of Representatives has voted to impeach only 13 federal judges; only seven judges 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. In every state, procedures exist to discipline and even remove judges who act unethically or illegally. 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 strive to understand the judicial process as a means of promulgating accountability than to undermine the benefits of a fair and impartial judiciary able to make difficult decisions. And, of course, legislators and executives each plays a role in analyzing judicial decisions and has a responsibility to amend laws and regulations 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 resulted 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. Deliberate contemplation is the hallmark of the American judicial system. Remember the judge I asked you to imagine? Now imagine this: imagine living in a country where the judge you had to trust to decide your case, or possibly to decide your fate, felt obligated to call his or her local political leader before passing judgment. What if you stood wrongly accused of a crime, but the tenor of the times was to "get tough on crime." Would you want your judge to be told by some politician how to decide your case? That so-called telephone justice system is just what the people in other tyrannies live under... and is what the emerging democracies are working so hard to retreat from. Our judicial system is held in such high esteem that the emerging democracies view American courts as the model for emulation—and we cannot let that model be denigrated by partisan political attack. The fact is that our Founders intended for our courts to operate independently, to be a check on the temporarily popular. Judicial independence was constructed in order to assure that minority rights are protected against popular and powerful interests. And, as already suggested, independence doesn't mean lack of accountability. Not at all. The system has accountability in the right ways. Federal judges must be appointed by the President—the executive branch—and confirmed by the Senate—the legislative branch. State judges may be appointed in a similar procedure, or after review by a special commission, or may be elected. Individual decisions can be appealed, offering oversight and accountability. Judges are subject to discipline for minor infractions, and can be removed from the bench for more serious transgressions. And finally, if the legislature and executive don't like the way a law has been interpreted by the courts... they can change it! And this has worked. The history of our nation is marked with examples of how our courts, working independently and free from political intrusion and oversight, lead our nation in times of need—in ending the vicious practices of segregation, in extending voting rights to all Americans, and in protecting average citizens from unwarranted government intrusion. This is a record deserving our great pride. An awful lot of people seem to have forgotten the role of the justice system as a defender—a defender of society against those who commit crimes, a defender of the free enterprise system, and a defender of individual liberties against unnecessary intrusion. Because we have lost sight of this important role, frustrations with the justice system are being exploited for partisan political purposes. This is not new. For years, politicians have blamed lawyers or the justice system for all the problems of society they have been unable to solve. This was bad enough. Today we see an unprecedented attack on our nation's judiciary. Politicians and ideologues are trying to bully our courts into doing what they regard as politically correct, peddling the empty promise that difficult problems faced by our society can be solved by limiting legal representation... limiting access to the justice system... or simply by impeaching a few federal judges. We must not forget that the American justice system resolves 100 million cases each year—simple, complex, routine, extraordinary. The fact is that most of these cases are resolved successfully, fairly and impartially, under the rule of law. We cannot allow the detractors and naysayers to undermine the delicate balance that has been crafted among the branches of government. The courts help make America special and successful by defending our freedoms and protecting our rights against intrusion. To undermine this essential feature of our democracy would mark a departure for our nation— a ripping up our Constitution and all of its values. And it would be a shameful event in the eyes of the rest of the world, who know full well the perils of a political judiciary. We cannot allow political demagoguery to undermine the genius of our constitutional system. Speech Ideas/Talking Points Home | Independence of the Judiciary Home Tips on Volunteering Home