ABA/NCSCJ International Judicial Independence Panel: It’s Up to Lawyers to Defend an Independent Judiciary

From Des Moines to Mexico City to Medellin to Krakow, the languages may be different, procedures may be different, but the concerns for preserving judicial independence are very much the same – and it’s up to lawyers to lead the defense.  That’s the message nearly 350 “virtual” attendees heard during the July 31 ABA Annual Meeting Showcase CLE program “Justice in The Crosshairs: Defending Judicial Independence – the Keystone of Justice – in the U.S. and the World” sponsored by the National Conference of Specialized Court Judges (NCSCJ) and the ABA Litigation Section.

In Mexico and Latin America, the threat to independent judges comes from drug cartels. In Poland, it comes from the president and parliament. And in the United States, it comes from voters and politicians who would turn impartial judges into partisan political actors taking “sides.”

“Justice and public respect for the rule of law depend on the fair application of the law by an impartial and independent judiciary not beholden to special interests,” said ABA President Judy Perry Martinez.

“Protecting the independence of judges and the judiciary is mission crucial for the ABA, in the United States and around the world,” said co-moderator Laurence Pulgram, a San Francisco lawyer and co-chair of the ABA Committee on the American Judicial System. “Democracy depends on it,” he added.

United States Senate confirmation hearings for federal judicial appointees are a “very troubling assault on judicial independence,” said Chief Justice Nathan Hecht of the Texas Supreme Court.

The hearings, Hecht said, have morphed into personal attacks on the nominees undercuting public confidence in the judiciary with “the bottom line” that “the confirmation process is designed to select people who are going to decide cases a certain way.” The nominee  is “trying to distance himself or herself from that perception.”

He added that partisan judicial elections also undermine public perception of independent judges. A recent Houston election resulted in Republican judges being ousted regardless of the quality of their performance. This result was because of “straight ticket” voting with a presidential politics and a Senate race on the same ballot. Such results, Hecht said, are “very antithetical to the rule of law.”

One of the most tumultuous recent judicial elections was in Iowa in 2010. A year earlier, the state Supreme Court unanimously struck down a ban on same-sex marriage as contrary to the Iowa constitution. That ruling became the central issue in the judicial retention election. Voters ousted all three Supreme Court justices on the ballot after a campaign that program co-chair Richard Ginkowski, president of the Wisconsin Municipal Judges Association and NCSCJ Education Committee chair, described as an “all-out, dark money, million-dollar free-for-all.”

Former Iowa Chief Justice Marsha Ternus, who was voted out in that election, said that Iowa judicial elections are usually quiet. However, that year some 200 churches campaigned against the justices and outside money poured into the state. The three justices did not form campaign committees or raise funds. “I’m pretty confident I would do the same thing again,” Ternus said. Television ads accused the justices of being political and “we would have been proving their point” if they had campaigned, she added.

The independent Iowa State Bar Association “had a lot of opportunity to become advocates on our behalf but they couldn't agree on whether they should,” Ternus said. “Lawyers have to be leading the charge to defend judicial independence,” she added, echoing Hecht.  “They have to be vocal and active advocates because judges can't do it themselves.”  “We need civics education.,” Ternus said, pointing out focus groups showed many voters didn’t understand the difference between judges and other elected officials and didn’t know what makes a good judge.

“We need judges and lawyers to go out and talk on every occasion they can to emphasize how important an independent judiciary is, not just to protecting the civil rights of all of us but to our democracy,” she added.

In Mexico, the threat is more physical, said José Ramón Cossío Diaz, former associate justice of Mexico’s Supreme Court of Justice, noting that there had been an “unwritten rule” that the drug cartels did not attack judges but now judges fear open warfare by the cartels.  Cossío said that he is “very, very afraid” and that Mexican “judges are in a very bad position.”

In Poland, the threat comes from the nationalist government that took control of the presidency and parliament in 2015, said Judge Dariusz Masur, a criminal court judge in Krakow. Judges who criticize the government are harassed and can be punished, he said, citing a 2018 law lowering the judiciary’s mandatory retirement age to force out 40% of the country’s Supreme Court justices. Later, the European Union’s top court ruled that policy illegal. Nevertheless, Masur said, political attacks on judges continue. “I feel really terrified by the situation,” he said.

Masur urged American lawyers to continue helping Polish judges. ABA leaders have visited Poland to support the judges and ABA presidents have issued several statements encouraging judicial independence.