When I found out that the theme for this issue would be, “judicial independence and how bars are responding to attacks on the judiciary,” I had to look over my shoulder to be sure this was not a Candid Camera moment. The State Bar of Wisconsin has recently confronted this very question. The last two state Supreme Court elections in Wisconsin were fairly ugly in terms of negative campaigning, total expenses (more than $1 million), and spending by special interest groups in excess of the amount spent by candidates. Ads went negative early. Candidates assured voters that they would “side” with law enforcement. And outside groups attacked the role of public defenders and misrepresented the judicial system and the role of lawyers and judges. The result: erosion of the public’s trust and confidence in our judicial system and a fundamental debate over election or appointment of judges and justices.
It is of no comfort to know that other states have faced or will deal with similar battles. What can or should bar associations do when faced with these issues? Does it do any good? What else can/should be done? While I’m pretty good at identifying the issues, the answers are much harder to come by.
In Wisconsin, past President Tom Bastings created the Wisconsin Judicial Campaign Integrity Committee, a bi-partisan group with the dual purpose of educating voters about the unique role of judges and monitoring campaign activities of candidates and their supporters.
Bastings stated at the press conference announcing the creation of the committee: “It is essential for voters to understand that judges are different than other elected officials.” He went on to stress that unlike elected officials who advocate for specific policy goals or perspectives, judges in our system are to fairly and impartially apply the rule of law to the specific case at hand. They are not to “prejudge” the issues, he added.
Public education efforts, like those in Wisconsin and other jurisdictions, will have the greatest impact. When recent surveys report that more people can name the three judges on American Idol than the three branches of government, that says something (and it is not positive). Likewise, when voters hear judges “signal” how they would rule on issues and find this appealing as opposed to the antithesis of what a judge should do, that is a problem.
In this day of 15-second sound bites, reality TV, and YouTube, the judicial system and its judges in black robes do not hold the sex appeal necessary to get the public to pay attention. But lawyers and judges are problem solvers, so now it is up to us to figure out how to get the information out and how to engage the public in serious discussion.
While lawyers are comfortable using words and making a judge, jury, or another attorney understand the point at issue, we have to hone our wordsmithing skills and learn how to really engage the public and make compelling arguments. At recent meetings of the National Conference of Bar Presidents, presenters have educated us on how a phrase like “judicial independence” is perceived by the public. Unfortunately, the perception is not what we want and not what will help the public better understand the role of the judiciary. In fact, pressing the point of “judicial independence” can actually have the exact opposite effect. We have to be willing to use focus groups and perhaps public relations professionals to be sure the message sent is the message received.
In this issue of Bar Leader, you will learn how some bar associations are responding to attacks on the judiciary, and perhaps we’ll all learn how to capitalize on the right use of words, actions, and programs so that, as bar leaders and legal professionals, we can defend liberty and pursue justice.