A Brief Discussion on Judicial Independence

By hai on June 27, 2008 9:14 PM

Judicial Independence as a Campaign Platform Issues, such as protecting judicial independence, improving interbranch relations, and expanding outreach to the people.

Improving Judicial Selection and "Call to Action" as a blueprint for judicial election reform.

"Good judging is good politics . . . " The people will support judges whom they perceive as independent even if they do not agree with particular decisions. But judges have to talk about judicial independence and make it a campaign issue.

Judges base their decisions on the facts and law presented in each individual case, not on their personal viewpoints on policy issues. Unlike other candidates, judges cannot campaign by making promises about how they'll decide issues. Constraints are placed upon judicial candidates in all states by canons of judicial conduct, and limits are placed on a judge's ability to sit on a case if the judge "decides" the case during a campaign. Judicial conduct also limit the political activities of judges.

The traditional view is that if a judge comments on a pending or impending case, the comments will reduce the litigants' and the public's confidence in the impartiality and fairness of our courts.
A "candidate for a judicial office, including an incumbent judge" shall not "announce his or her views on disputed legal or political issues.

Judges and judicial candidates can and should speak on the issue of judicial independence.

Free to Speak on Judicial Independence
Judges and candidates are legally and ethically free to speak about the critical importance of judicial independence. In any judicial-selection system, the best way to ensure judicial independence is to develop the public's understanding of, and respect for, the concept of judicial independence. Lawyers and judges must educate the public on judicial roles and duties. Educational efforts should not be restricted to elections or times of crisis. Judges and lawyers must be community educators using a variety of tools to reach the public, the media, and the executive and legislative branches of government. Public outreach efforts promote judicial independence because they enable citizens to evaluate critical attacks on judges and to value judicial independence.

The points that should be addressed in this education effort are:
• What is judicial independence?
• Why is judicial independence important to you, the citizen?
• What are the threats to judicial independence? and
• How can judicial independence be protected?

What is judicial independence?
"The law makes a promise — neutrality. If the promise gets broken, the law as we know it ceases to exist."

Judicial independence means that judges decide cases fairly and impartially, relying only on the facts and the law. Individual judges and the judicial branch as a whole should work free of ideological influence. Although all judges do not reason alike or necessarily reach the same decision, decisions should be based on determinations of the evidence and the law, not on public opinion polls; personal whim; prejudice or fear; or interference from the legislative or the executive branches, or private citizens or groups.

There are two types of judicial independence: decisional independence and institutional independence (sometimes called branch independence). Decisional independence refers to a judge's ability to render decisions free from political or popular influence; decisions should be based solely on the facts of the individual case and the applicable law. Institutional independence describes the judicial branch as a separate and co-equal branch of government with the executive and legislative branches.

Any discussion of judicial independence needs, however, to be joined with a discussion of accountability. It is not only ensures the protection of rights, but also enforces responsibilities. The rule of law holds government officials accountable to those in whose name they govern to prevent abuse of power, and the judiciary is not exempt from accountability. Judges are accountable to the public to work hard, keep their dockets current, educate themselves about changes in the law, and treat each person with respect and dignity. Judges are accountable to represent the judicial branch before the public and other branches of government, and to advocate for court reform.

Why is judicial independence important to you, the citizen?
Judicial independence is a means to an end — the end is due process, a fair trial according to law. Judicial independence thus protects the litigants in court and all the people of the nation.

What are the threats to judicial independence?
Historically, threats to judicial independence have come from the legislative and executive branches. Executive and legislative leaders have at times tried to influence judicial outcomes.
Governmental threats to an independent judiciary are:
• Poor interbranch relationships among the judiciary, the legislature, and the executive, marked by a lack of communication;
• Legislative limits on or curtailment of judicial jurisdiction;
• Legislative refusal to increase judicial salaries; and
• Chronic underfunding of the judicial branch and increasing workload.

More recently, nongovernmental groups have threatened judicial independence using political, social, and economic resources to influence the selection and retention of judges.The danger is that when individuals or groups are highly organized, ideologically driven, and well funded, their self-interest in winning cases overcomes their interest in an independent judiciary.
More specific threats to judicial independence by nongovernmental groups include:
• Inappropriate threats of impeachment prompted by particular judicial decisions;
• Political threats intended to influence a judge's decision in an individual case; and
• Misleading criticism of individual decisions.

The best judges are those who resist threats to judicial independence and actively advocate judicial independence. The basic, underlying safeguard for judicial independence is popular support of the concept.

How can judicial independence be protected?
Public education efforts about judicial independence and judicial selection face a number of challenges, including limited public knowledge of courts and judges, and limited resources to reach a broad public audience.

If judges include judicial independence as a campaign issue in their election and retention campaigns, the public will respond with an eagerness to learn more. The public's appreciation of, and respect for, judicial independence is the best way to ensure that the judiciary will remain independent. Campaigning on judicial independence can educate both judges and the electorate on the importance of protecting fair and impartial courts.