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Vol. 31, No. 2

Judicial independence: Civic education is key

by Michelle A. Behnke

In my home state, the headlines have recently been filled with stories of courts being closed during certain hours or judges emptying trash cans because janitorial workers had been cut to reduce budgets. Not long ago, national newspapers carried the news of a gruesome discovery when two family members of a federal judge in Chicago were found murdered in their home. There have been similar stories of violence with incidents in Atlanta, Los Angeles, and Reno. Judges have also come under attack by politicians, most notably, the verbal attacks against judges who decided parts of the Schiavo cases.

Escalating violence against judges, pressure to limit or curtail judicial discretion and independence, and an unwillingness to properly fund our judiciary are all working to weaken our judicial system. Some of these acts are intentional, and some are the result of neglect and lack of knowledge.

Lawyers and judges, especially those active in bar activities, know the importance of the judicial branch. We’ve read hundreds of articles analogizing our system of government to a three-legged stool with each branch of government—judicial, legislative, and executive—identified as one of the important legs of the stool. We in the profession know how critical our judicial branch is, but how do we effectively communicate that to the public? Bar associations, large and small, have undertaken efforts to support proper funding of the judiciary and the fundamental precept of judicial independence.

Even though we hold these truths to be self-evident, the general public does not seem to embrace these truths. As lawyers, we rely on words to communicate every day with our clients, opposing counsel, judges, juries, and the media. We know when we need to break down concepts or use demonstrative evidence to get our point across. I think that the importance of a strong, independent, well-funded judiciary and the value of our judicial system are perfect opportunities for just such demonstrative evidence. One thing is for sure—simply repeating key phrases or saying them louder is not the solution.

If we can’t help the public understand the value of the judicial branch, they will not be willing to support it through funding, serve their proper role on juries, or trust the decisions that come from the system. That lack of trust and support is the beginning of the end.

It sounds trite, but I believe that education about our judicial system and the role of judges and juries must be a lifelong process. It must start early as part of grade school education. It must continue in high school, college, and into adulthood. In these educational efforts, we have to do more than recite the facts regarding the constitutional creation of the three branches of government. We have to bring the judicial system to life. We have to point out the pitfalls of judges being beholden to political parties or campaign contributors, or simply making the popular decision in spite of law and precedent. We have to bring to life the heroic decisions our courts have made over the years. We have to make this legal system and the judiciary real for the public. “Virtual understanding” will not do.

I believe that bar associations are critical to solving the problem. The sheer number of lawyers within bar associations provides an incredible base of people to spread the message and connect with the people in their communities. Many associations already have extensive law-related education programming. Now more than ever, associations and bar leaders need to connect with educators and the public to ensure a fundamental understanding of what a strong, independent judiciary means to them personally. We need to make the judicial branch come alive, help people see it, feel it, touch it, smell it, and hear it. It must be real and concrete.

We must increase our efforts in this critical area. I hope as bar leaders you will evaluate your ongoing education activities and programs and look to the ABA to supplement or augment those programs. There are programs out there to address any audience, kindergarten to adult. The resources available through the ABA might just be the spark you need to tackle this thorny issue.

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