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Vol. 46, No. 5

Supporting the judiciary: 2021 a busy year for challenges to judicial independence

By Robert J. Derocher

In the dozen or so years that attorney Bruce Spencer has lobbied for the State Bar of Montana, he can recall only a handful of proposed bills each state legislative session that affected the judiciary, usually requiring minimal effort for him to track.

But in 2021? Spencer has been such a frequent witness at legislative hearings, speaking out on numerous bills aimed at the state’s judiciary, that he’s attracted attention, admiration—and concern—from the Brennan Center for Justice, a nationwide nonpartisan judicial advocacy organization.

“A slew of really bad bills related to the courts were introduced, and I felt terrible for [Spencer],” says Patrick Berry, a counsel for the Brennan Center, who anxiously watched many of Spencer’s appearances. “He was really busy this session.”

Spencer agrees, saying that more bills than he’s ever seen in a single session were threatening judicial independence in Montana—driven in part by “a growing mistrust” among legislators toward the judiciary since former President Donald Trump’s verbal attacks following the 2020 election.

“Some people don’t understand that politics is not part of the decision-making process for a judge,” says Spencer, a former state bar president. “Or at least it shouldn’t be.”

Berry and others say Montana is not alone: Legislators and governors in several states have taken aim at their state judges and judicial systems, offering up and signing legislation addressing initiatives such as judicial impeachment, partisan elections, funding and other issues that many fear weaken the judiciary and imperil constitutional separation of powers.

And as in Montana, many bars are finding themselves increasingly on the defensive and speaking out on issues that they see as critical in defending the profession—in particular, the judges, lawyers and staff members who operate and work in the courts. Through increased advocacy, conversation, education, and outspoken action, many bars plan to continue their efforts to defend fair and impartial courts.

A victory for bars in Tennessee

By the Brennan Center’s tally in April, 17 states were considering or had considered 42 bills that would diminish judicial independence, with at least three signed into law, according to Berry. Many of those bills, he says, are coming from Republican-led legislatures who disagreed with judges’ support for extending voting hours and/or issuing stay-at-home orders related to the COVID-19 pandemic.

One such case in Tennessee prompted a bill that specifically targeted a Nashville judge who ruled in favor of efforts last year to extend absentee voting regulations in the wake of the pandemic. While the legislator who introduced the bill called Chancellor Ellen Hobbs Lyle’s decision “judicial overreach,” the bill was swiftly condemned as legislative overreach by a coalition of state and local bars and legal groups.

“We believe House Resolution 23 (HR 23) will have a chilling effect on the administration of justice in our State, and threatens the bedrock principle of separation of powers, which lies at the core of Tennessee's system of government,” the Tennessee Bar Association said in a public statement. “The TBA is concerned that HR 23, if successful, will create a precedent that any time a judge rules against the state, or on a statute, or renders a politically unpopular decision, that decision could potentially trigger legislative removal proceedings against that judge.”

The state’s largest metropolitan bars, in Nashville, Memphis and Knoxville, issued similar statements. The bill failed to make it out of committee.

The decision to issue the statement was not taken lightly, says TBA President Michelle Greenway Sellers, and was made after a thorough examination of Lyle’s decision, as well as her two decades on the bench. It was a decision that has been supported by many bar members, she says.

“We made clear in our statement that it was not intended to be political or partisan, but it was one of extreme concern and caution,” Sellers adds. “We have members of all political persuasions. This was not political.”

Despite the temporary victory, Sellers says the bar’s Governmental Affairs Committee continues to track several other legislative proposals that might also pose threats to judicial independence.

Preserving nonpartisan selection

In Montana, Spencer has been kept busy speaking out on bills that, among other proposals, would make it easier to impeach judges and require the partisan election of judges statewide. A bill signed in March by Gov. Greg Gianforte allowing the governor to directly appoint district and state Supreme Court judges, bypassing a nonpartisan nominating commission, was challenged in a lawsuit a day later.

Spencer finds the impeachment measures the most worrisome. “Don’t impeach [judges] for what they’re constitutionally obligated and allowed to do, which is to call the balls and strikes and make decisions,” he says. “I think that is legislative overreach into the separation of powers.”

In Pennsylvania, there has been ongoing friction among the three branches of government. In recent years, borne out of perceived dissatisfaction with the outcome of certain court rulings, there have been some efforts by the state legislature to constrict the authority of the judicial branch. The Pennsylvania Bar Association has been particularly concerned about a recent legislative proposal that would divide the state’s Supreme Court and intermediate appellate courts into distinct judicial districts requiring partisan elections.

“Our bar association maintains that so long as our judges are selected by popular vote, the appellate judges with statewide authority should continue to be elected on a statewide basis,” says President Kathleen D. Wilkinson. “The bar association has also long supported merit selection, and the pending leglislation is directly contrary to our policy favoring appointment of appellate judges based on merit rather than political affiliation or fundraising ability.”

Merit selection has bipartisan support in Pennsylvania, Wilkinson notes, but it has not yet reached "a critical mass." 

The bar has also been vocal, she says, about the Republican-led legislature and the Democratic governor freezing the overall state judiciary budget for four consecutive years, while also using millions of dollars in court-designated funds to help balance the state budget.

“The judicial branch is dependent on the other two branches for support—and neither has provided the needed support,” Wilkinson adds.

Bars offer education and outreach

Although plenty of media and public attention around judicial independence is focused in Washington, D.C., state legislative efforts to erode the separation of powers are “mostly flying under the radar,” Berry says. And that’s troublesome, he adds, given that about 95 percent of court cases nationwide are in state-level courts. With politically fraught election redistricting on the horizon, he expects to see more legislative efforts to politically control the judiciary.

“All of these efforts threaten the role that courts are supposed to play in our democracy. Courts are supposed to defend our rights and hold political actors accountable,” Berry says. “It’s dangerous when these actors try to get more influence over the courts.”

He has been encouraged by the efforts of many state and local bars to speak out in defense of judicial independence—but it is an effort that must continue, he adds.

Education and outreach are prime tools that the Pennsylvania bar will continue to use, Wilkinson says. For example, a recent bar task force guide offering ways to improve legal services during the pandemic and future emergencies was delivered to the governor, every member of the legislature, judges, county bar leaders and the media.

“The offered suggestions, largely focused on improved access to justice through updated technology, are not only designed to benefit judges and lawyers," Wilkinson notes, "but to benefit the citizens of Pennsylvania.” 

What does it take to change minds?

Spencer agrees that bars are “uniquely positioned to help in explaining the judicial branch of government.” But he also cautions bars and other judicial branch advocates to tread carefully—and slowly—to avoid political landmines.

“We need to get out and explain what the third branch of government does, and I think we have an obligation to do it as officers of the court, and we need to start now. You can’t wring your hands and say, 'I don’t have a perfect plan,'” he says. “It takes a long, long time and a lot of commitment.

“You cannot hammer them into changing their minds. You cannot force them into changing their minds. You cannot embarrass them into changing their minds. You can only educate them into changing their minds.”

And, he adds, “It takes a lot of coffee.”

(Note: This is the first of two articles on how bars are helping to support the judiciary. In the next issue, we will examine the topics of courthouse security and personal safety for judges and their families.)