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July 15, 2022

Judicial Independence: Are You Part of the Solution or Part of the Problem?

By Hon. Richard Ginkowski, Pleasant Prairie, WI

Protecting judicial independence and the rule of law is the responsibility of the entire legal community according to a blue-ribbon consortium speakers at the inaugural “Democracy’s Last Line of Defense” symposium held on May 26 in Chicago. 

Keynote speaker Doug Jones, a former U.S. Senator (D-Ala.) and federal prosecutor said “the ultimate threat to democracy” is “absolute bitter partisanship that pits friend against friend and family against family” concluding that “the judiciary can only be insulated for so long and only for so much.” 

Jones used Congressional failure to adopt new gun regulations in the wake of mass fatal shootings to illustrate a crippling intransigence that threatens domestic security and the rule of law. 

“The ‘left’ blames the guns and the number of guns and easy access to guns and the ‘right’ sends thoughts and prayers and says we have to do more about mental health,” Jones said. 

“Both are right but they won’t talk to each other,” he added. 

University of Connecticut Professor Leslie Levin said that state and local Bar associations must take the lead in defending judicial independence “because obviously the judiciary can’t do it by itself” and also called for lawyers and judges to achieve “media literacy” noting that “people do not understand the power” of social media. 

“We need to do a better job of educating the media as to what we do,” said Arizona Chief Justice Robert Brutinel, who pointed out that when he began his judicial career “there was a court beat reporter” who “knew everybody involved and how the court system worked.” 

“That’s all gone and they don’t understand,” he added. 

Chief Justice Brutinel also said that to have legitimacy judges must follow proper standards for judicial conduct because “it’s the hard thing in defending judges” and the system of justice when behavioral lapses skew the public’s opinion of the judiciary. 

“Sometimes the system deserves criticism,” he said. 

“As judges we know what we must do because we are stewards of these positions,” added California Supreme Court Chief Justice Tani Cantil-Sakauye. 

She said that judges “set a good example” when they abide by codes of judicial ethics. 

“It allows us to insure that people have faith in the work we do and that not only do we not suffer from bias but we don’t have the appearance of bias,” she added. 

Senior United States District Court Judge Reggie Walton of Washington, D.C. said it was “unimaginable” that a code of ethics does not apply to United States Supreme Court justices. 

“As a court system, federal, state and otherwise, we are under scrutiny and under attack," he said.

“And I think there's an attempt by some to undermine our independence. And because of that I think all judges should be subject to a code of ethics.” 

University of California Berkeley Law School Dean Erwin Chemerinsky said it’s difficult for “courts to have legitimacy if people don’t understand what courts do” calling on “lawyers, law professors and judges” to “be out there doing civic education.” 

“We need to go into the high schools and Rotary Clubs” and “find ways of communicating to people” because “the lack of understanding of judicial independence is a lack of understanding what judges do,” he added, concluding that, “We do a terrible job of civic education.” 

The Chicago symposium was spearheaded by the National Judicial College with support from several law related groups and major law firms. Another sponsor was Edwards and Culver, a six-member law firm in Billings, Montana whose founder, A. Clifford Edwards, said that “Every officer of the court owes time and money to supporting our profession and the independent judiciary because if we lose the independent judiciary we have lost democracy.” 

Paul Sreenan, president of the International Academy of Trial Lawyers, summed up the day-long symposium: “Ultimately judicial independence is a principle that requires widespread support of the people if it is to be preserved. That support is product of education by our schools, by our political leaders, by the media but also by the judiciary itself. Judges can educate by their judgments, their writing, by speaking at conferences, but also by the way they behave and the respect that they earn. We all have a part to play.”

(Editor’s note: Several installments of the ABA Judicial Division podcast Gavel Talks are being devoted to presentations from the symposium. The first episode in the series is available.)

Richard Ginkowski

NCSCJ Executive Committee Member

In addition to serving as a Member-at-Large on the NCSCJ Executive Committee, Judge Ginkowski chairs the NCSCJ's Programs and Education Committee, hosts the Judicial Division's podcast, Gavel Talks, and serves on the Editorial Board for the JD Record.

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