February 18, 2020 Appellate Issues | Winter 2020

An Independent Judiciary: The Shield of a Free Society

By Leanna Weissmann

In a session that started with Nazi Germany and fast forwarded to present times, the panelists emphasized that an independent judiciary forms the backbone of societal trust. When judges engage in a myopic prejudicial analysis of a legal issue, the law can become a weapon to inflict legal wrongs rather than acting as the trusted shield of justice forming the backbone of a free society.

In this hour-long presentation, Moderator John Barrett, a professor at St. John’s University School of Law was joined by panelists retired Judge Mark Martin, a professor at Regent University School of Law; Hon. Anna Blackburne-Rigsby, Chief Judge of the District of Columbia Court of Appeals; and Hon. Albert Diaz, of the U.S. Court of Appeals for the Fourth Circuit . All panelists agreed that members of the judiciary must remain independent or risk dire social consequences.

“We need to be shielding ourselves and watching our actions as they apply to society,” said Judge Blackburne-Rigsby.

“I always thought,” she added, “and mistakenly so, that the judges in Nazi Germany were Nazi judges, and they weren’t. They were democratically elected judges who lost their way for lots of reasons – primarily for fear of what may happen to them if they didn’t decide a particular case in a certain way.”

Judge Blackburne-Rigsby added that judges like those in Nazi Germany did not necessarily refuse to follow the law, but instead allowed prejudice and outside influence to encourage a narrow legal view which harmed a marginalized segment of the population.

The types of wrongs inflicted on the German Jew by the judicial system were not so different from the harms arising in the United States from judicial opinions made in Dred Scott v. Sandford and Plessy v. Ferguson. Much like the antisemitism which fueled Nazism, prejudice flowing from slavery and post-reconstructionist laws made it lawful to inflict harm on certain members of society.

“Sometimes the shield is misused at its worst by judges,” commented Judge Blackburne-Rigsby.

But she reminded the audience that judges can use the shield of judicial independence to restore rights. This positive use of the shield was demonstrated in the Nuremburg trials and the Brown v. Board of Education decision where those in power restored the rights of others. The judiciary needs to be diverse to ensure that many voices are in the room to grapple with difficult issues.

Judge Martin recently saw arguments about judicial independence play out in a modern-day setting when North Carolina voters shot down a proposed constitutional amendment which would have created a committee to fill judicial vacancies occurring between elections. Currently the governor fills these vacancies through appointment. The debates raging in Judge Martin’s home state about how judicial selection could impair judicial independence reminded Judge Martin of the public importance of this issue. 

Judge Martin adheres to two principles when speaking of an independent judiciary – the fair play principle and the boomerang principle.

“When you have legislative interference that rises to the level most citizens view as unhealthy and problematic, the sense of fair play is violated,” said Judge Martin. “What you see then is the boomerang principle that come back to the very people who try to manipulate the process.”

When it comes to the role of judges, Judge Diaz compared his superior court judicial campaign as worse than a colonoscopy due to the unsavory aspects of elections, in other words, money. Judges must concern themselves with running campaigns and rely on donors who may end up appearing before that judge. The electoral system can be flawed and a judge must be careful not to make campaign promises which may later raise questions of bias.

Judge Blackburne-Rigsby reminded the audience that the general public must be educated on the importance of independence in the judicial branch. Sometimes voters misunderstand the concept of an independent judiciary and believe judges are really saying that they stand above the law.

“We don’t always do the best job telling our story to the community we serve,” said Judge Blackburne-Rigsby. During a judicial election, voters need to understand the different strengths judges bring to the table to make informed decisions at the polls.

Regardless of whether the state’s judges are elected or appointed, transparency is needed in both systems to engender confidence. Voters appreciate transparency. For example, Judge Martin noted that in states where voters received sent guides listing information about each of the candidates, about one out of four voters appeared at the polls with these pamphlets in hand.

“It’s time for us to tell our story,” Judge Martin said.

“We can tell our story without violating an ethics rule. And when asked a question we can’t answer, we can reinforce why we can’t answer. The fairness and impartiality of due process would be compromised if judges state themselves out on the issues that will come before the courts,” said Judge Martin.

In ensuring judges remain independent, the panel grappled with the concept of term limits. Judge Diaz mentioned that the 15-year term limit imposed in the military courts seems to work well. However, in a court like the United States Supreme Court, such a short-term limit might not serve the country as well due to the need for continuity on big legal issues. Instead, Judge Diaz posed the option of limiting terms on the high court to twenty years. Such limitations would allow continuity while also giving each president an opportunity to replace a judge. A quicker turnover on SCOTUS might also reduce nomination battles which can become deeply entrenched and political.

Though term limits seem like a good idea, Judge Blackburne-Rigsby expressed concern that society could lose competent judges with experience on the bench as term limits expire. If judges are serving society well, then term limits should not serve to bar reappointment.

Judge Martin limited his own judicial term by leaving the bench to work in academia. Though there are benefits to term limits, Judge Martin shared Judge Blackburne-Rigsby’s concerns about losing talent and preventing a “wisdom drain” from the bench.

The panel concluded with thoughts on how to encourage confidence by the public in the judiciary.

Judge Martin reminded the audience of Ben Franklin’s famous quote, “It’s a republic if you can keep it.”

Along that vein, Judge Martin stated, “Let’s not forget what we have and what we can lose. Every judge should take on the duty to educate the public. Talk to kids. Go out in the public and make sure people understand the role we have has judges and why it’s important to a free society.”

Judge Diaz reminded practitioners that sometimes lawyers need to step up and defend the bench when a judge cannot defend himself or herself.

As a final note, Judge Martin reminded the participants that overall judges are doing well despite media coverage of corruption that seems to dominate the airwaves. Most judges adhere to a presumption of honor, which gets lost amongst the noise.

“Look at how far we’ve come as a country,” Judge Martin said. “The freedom and the diversity of American civilization, it’s time to take stock and realize we are doing a lot of things well and they are worth doing and preserving for our children and grandchildren.”

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Leanna Weissmann

Leanna K. Weissmann is a native of Aurora, IN. She graduated from Indiana University-Bloomington in 1991 with a double major in journalism and English, and then earned her law degree from Indiana University School of Law-Indianapolis in 1994. From 1993-95 she clerked for Court of Appeals Judge Robert D. Rucker (now Justice Rucker of the Indiana Supreme Court). She now runs a solo law practice in Lawrenceburg, IN, focused entirely on appellate practice. She has argued several times before the Indiana Court of Appeals and Indiana Supreme Court. In 2018, Ms. Weissmann obtained a reversal for a client through the United States Supreme Court on the issue of cell phone privacy rights.