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Vol. 30, No. 2

Judicial independence in peril: Are we doing enough to help?

by Robert J. Derocher

Our country is built on bedrock. It’s called “separation of powers.” It means three branches of government . . . your courts . . . your congress or council . . . and the chief executive of your city or state or the nation. They often disagree . . . But they’re expected to work together for the good of us all . . . not run roughshod over each other. Our government . . . Three legs . . . not two.

—Radio announcement sponsored by the New York State Bar Association, June 2005

This statewide spot was developed by the NYSBA just weeks after a string of high-profile incidents aimed at the judiciary: the execution-style killings of federal Judge Joan Lefkow’s husband and mother, the courtroom shooting of Georgia Judge Rowland Barnes, and the bitter legal battle over the fate of Terri Schiavo that ultimately involved the U.S. Congress—some of whom denounced judges in the case.

“There’s a disturbing trend, both in strident language and in the bills introduced by legislators, away from judicial independence,” says A. Vincent Buzard, president of the 71,000-member NYSBA, explaining why the ads were developed. “We have to seize the opportunity when somebody says something stupid to explain the role of judicial independence in a democratic society. We, as a bar, have to try and calm things down.”

The NYSBA has not been alone in its efforts. From the ABA House of Delegates right down to local associations, many bars have become increasingly active in speaking out in support of judicial independence. The support is vital, many bar members and judicial observers say, as political rhetoric and legislative efforts targeting judges are appearing to become more prevalent and more blunt at virtually all levels of the judiciary.

Letter writing, legislative lobbying, and media appeals to the public similar to the NYSBA campaign are just some of the approaches bars are taking to confront the issue. And with many in the profession believing that the trend toward more verbal—and potentially physical—attacks on the judiciary will not abate any time soon, continuing and increased support from bar associations is critical to preserving judicial independence.


Criticizing the judiciary and attempting to wield political influence over the courts is nothing new in American history. President Franklin D. Roosevelt’s attempt to “pack” the Supreme Court with additional justices in the 1930s and a grassroots movement by conservatives in the 1960s to impeach Chief Justice Earl Warren are among the more recent notable shots at judicial independence.

But what has caught the attention of many in the judiciary over the past decade has been the escalating public attack on judges and the often-controversial decisions they make.

“It’s more vocal and it’s more vituperative than it has ever been … and it’s coming primarily from people who ought to know better [in the U.S. Congress],” says Florida Court of Appeals Judge Peter Webster, a member of the board of directors of the American Judicature Society. “These politicians who are doing this recognize that this is a hot-button issue with voters, and they can reap political gain with little repercussion for themselves.”

Webster says the attacks seemed to reach a “crescendo” last spring with the February 2005 killings of Judge Lefkow’s husband and mother in Chicago by a disgruntled plaintiff, the fatal shooting of Judge Barnes by a criminal defendant in March, and the death of Schiavo, also that month, after Congress tried to intervene in a case handled by Florida courts.

Webster says he and other judges were particularly concerned by comments made by Rep. Tom DeLay (R-Texas) during the Schiavo debate, when the powerful congressman decried the rulings of “activist judges,” adding, “We will look at an arrogant, out-of-control, unaccountable judiciary that thumbed their nose at Congress and the president.”

Also leading to concern shortly after the Lefkow and Barnes killings, Sen. John Cornyn (R-Texas) seemed to offer an explanation for such courthouse violence, saying that more of the public are becoming upset with judges who “are making political decisions, yet are unaccountable to the public.” He said that anger “builds up and builds up to the point where some people engage in violence, certainly without any justification.”

For her part, Judge Lefkow called on Congress for help in curbing not only the violence, but the politically motivated verbal attacks on the court.

“We need your help in tempering the tone on the debates that concern the independence of the judiciary,” Judge Lefkow told a Senate committee shortly after her family tragedy.

“In this age of mass communication, harsh rhetoric is truly dangerous. It seems to me that even though we cannot prove a cause-and-effect relationship between rhetorical attacks on judges in general and violent acts of vengeance by a particular litigant, the fostering of disrespect for judges can only encourage those who are on the edge or on the fringe to exact revenge on a judge who displeases them.”

Yet, the attacks seem to continue, Webster says. Among them: House Judiciary Committee Chairman James Sensenbrenner’s (R-Wis.) letter this past summer to a federal Chief Circuit Court of Appeals judge, demanding a harsher sentence for a defendant in a drug case and the often-vitriolic Senate confirmation hearings for Supreme Court Chief Justice nominee John Roberts.

“[Judges] don’t mind having a high degree of public accountability,” Webster says. But he feels that many politicians are crossing the lines between accountability and dissatisfaction with decisions.

The questioning of Roberts by several Democratic senators about how he might rule or decide cases, he says, was a “sad situation in terms of what it does to the public’s perception of the Court. Judges do not and are not supposed to decide cases that way.”

Public Perception

It is that public perception of the judiciary, particularly in today’s white-hot media environment, observers say, that can lead to problems in explaining the judiciary’s role in the government—whether it be a state court or the U.S. Supreme Court.

“The judiciary becomes an easy mark,” says Rachel Paine Caufield, a politics professor at Drake University in Des Moines, Iowa, and a consultant for the Hunter Center for Judicial Selection for the AJS. “The public generally does not understand the role of the judiciary and can be relatively easily convinced that judges are overtly political and do abuse their authority.”

Compounding the problem, she says, is the fact that judges can rarely speak about a case before them. “The courts have no natural constituency that can stand up for them and defend their independence in the public debate,” she adds.

That is where bar associations might be able to play a role, Caufield and others say.

“The organized bar has to talk about what judges do and defend to the death what the Third Branch of government does,” says William P. Carlucci, president of the 27,000-member Pennsylvania Bar Association. “Every organized bar should have a committee of lawyers prepared to write or speak on behalf of the need for an independent judiciary.”

At the national level, the ABA’s House of Delegates passed a resolution at its Annual Meeting in August, “affirming the belief that a fair, impartial, and independent judiciary is fundamental to a free society.” It also called on all Americans—particularly elected officials—to support and defend the judiciary.

“Let’s get one thing straight: the ABA will not compromise or negotiate the independence of America’s judiciary,” ABA Past President Robert Grey said in a speech earlier this year. “We must address the current atmosphere in which our courts operate—whether state or federal—and what can only be called a decline in civility and respect toward our justice system. Our worsening atmosphere is as deadly a weapon against an independent judiciary as is any individual assailant, and carries with it the potential to do greater harm because it uses stealth, not blunt force, to achieve its goals. It eats away at and alters the public’s perception of judges and the justice system until the judiciary is neither understood nor respected.”

At the state and local levels, bar associations have also spoken out in support of judicial independence in the past few months. The North Carolina and California bar associations each passed resolutions upholding an independent judiciary. In Pennsylvania, op-ed pieces from bar leaders were sent to newspapers and media outlets statewide and received prominent play.

“We always try to educate the public that judges have to try and be independent,” says Kenneth G. Petrulis, president of the Beverly Hills (Calif.) Bar Association, which helped spearhead the California bar vote. When warranted, he said, “criticisms (of the judiciary) should always take place, but there shouldn’t be attacks on the person.”

Shortly after the Schiavo case, the BHBA—one of California’s largest local bars, with 3,600 members—sent letters and e-mails to several bars across the state and country, urging them to pass resolutions supporting judicial independence. More than 30 associations responded, Petrulis says.

In Atlanta, where the Atlanta Bar Association and Bar Foundation established a memorial fund for Judge Barnes, many association leaders have been meeting with judges to reassure them of the bar’s support, as well as making public statements reaffirming the need for a “secure and independent judiciary,” says bar association President Elizabeth Price.

“What these events tell us is that we must do a better job of ensuring that the general public appreciates the need for our judiciary to operate independently and as free of the political process as possible,” Price says. “Comments that denigrate the actions of our judges . . . can be harmful not only to our system of government, but to the personal security of those in the judicial system.”

The Toledo (Ohio) Bar Association brought the Schiavo case close to home by inviting George Felos—the lawyer representing Schiavo’s husband, Michael—to the bar’s October bench-bar conference: Judicial Independence: Under Attack!

“Without some proactive efforts by the leadership of the profession, we could lose a lot of liberties with the encroachment on the judiciary,” says Reginald Jackson Jr., former Ohio State Bar Association president and moderator of the conference. “Do we really want the judiciary to rule by the will of some people, rather than the rule of law?”

Possible Solutions

While bar associations can play an important role in defending judicial independence and the role of the judiciary, lawyers can still find themselves in difficult situations as they do so.

“We don’t want to come across as a shill for anyone,” Carlucci says. He and other bar leaders can understand why the public may view lawyers as blindly protecting their own by supporting judges.

That issue can be particularly acute in local jurisdictions where lawyers might appear to be currying favor with judges whom they regularly appear before, says the AJS’s Caufield. She advocates the creation of committees at the state and local levels that are made up of retired lawyers who would have no vested interest in speaking about particular judges or rulings.

But many bar leaders say the tone and frequency of the attacks require their attention. Their best hope, they say, is to educate lawmakers and the public about the need for judicial independence and the overall role of the judiciary. That is what the Florida Bar Association did in the wake of the Schiavo case.

“The bar used the media attention on the Schiavo case as an opportunity to educate the public about the judicial branch and how it works on a day-to-day basis, as well as to increase the public’s knowledge about living wills, health-care surrogates, and other end-of-life issues,” says bar President Alan B. Bookman. “We can and should educate the public on how decisions were reached based on the rule of law.”

If the threat to judicial independence is not reined in, some bar observers fear the future of a talented, dedicated judiciary might be imperiled. When combined with comparatively low pay, less-than-optimal working conditions and safety concerns, the potential for regular castigation by politicians and the public “makes the job tougher to do and less attractive,” Webster says. “It would make any thoughtful person think twice about becoming a judge.”

For now, he adds, “there’s not much you can do about a Sensenbrenner or a DeLay, except for the bar to step up to the plate and say when they’re wrong and why they’re wrong.”

And that is just what many bars intend to keep doing.


Beverly Hills Bar Association Reacts

For the Beverly Hills (Calif.) Bar Association, taking an active role in supporting judicial independence is nothing new. The bar’s Committee on Judicial Independence has a formal written policy that spells out when the bar should take action and what can be done to support the judiciary.

If an unwarranted or inaccurate attack on the judiciary or judges is made, the policy states that the bar should try to respond as quickly as possible through a variety of means, including press releases, op-ed pieces, educational forums, and letters to public officials.

“You have to trust the system,” says BHBA President Kenneth G. Petrulis. “You have to defend the right of the judges to rule independently.”

In 1996, for example, bar leaders came to the defense of Judge Nancy Wieben Stock after she awarded O.J. Simpson custody of his two children in a ruling that sparked intense criticism. Bar leaders held a press conference in the judge’s chambers, supporting her and the independence of the judiciary. That was followed by a BHBA past president who appeared on a three-hour radio talk show, answering callers’ questions about judicial independence.

More recently, insults, death threats, and an impeachment drive aimed at two federal judges, who ruled that the phrase “under God” in the Pledge of Allegiance violated the U.S. Constitution, prompted the committee to generate a formal report with recommendations that still serves as a guide to BHBA, says Cynthia F. Pasternak, the bar’s president-elect and a former chair of the committee.

The report was subsequently disseminated to other bar associations as a suggested procedure for responding to attacks against the judiciary and judicial process. In addition, a President’s Page in the BHBA’s Bar Brief Newsletter was dedicated to a discussion of the importance of judicial independence.—RD