SEPTEMBER 2020 | AROUND THE ANNUAL MEETING

Assault on judicial independence is worldwide problem

In Mexico, 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.

In other words, the fight for judicial independence has no international boundaries.

That was the takeaway at a program July 31 at the virtual American Bar Association Annual Meeting, where judges from Mexico, Poland, Texas, Iowa and Wisconsin compared notes.

“From Des Moines to Mexico City to Medellin to Krakow, the languages may be different, the procedures may be different, but the concerns are very much the same,” said Judge Richard Ginkowski, a municipal court judge in Pleasant Prairie, Wisconsin.

“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.”

In the United States, Senate confirmation hearings of federal judges are a “very troubling assault on judicial independence,” said Texas Chief Justice Nathan Hecht. The hearings, Hecht said, have become personal attacks on the nominees. That undercuts public confidence in the judiciary, he added.

Partisan judicial elections also undermine public perception of independent judges, Hecht said. In a recent Houston election, he recalled, all Republican judges were ousted, regardless of the quality of the judges, because of presidential politics and a Senate race on the same ballot. Such results are “very antithetical to the rule of law,” Hecht said.

One of the most tumultuous judicial elections in recent years was in Iowa in 2010. A year earlier, the state Supreme Court unanimously struck down a ban on same-sex marriage as unconstitutional. 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 Ginkowski 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, described the experience at the ABA program. Usually, Iowa judicial elections are quiet affairs, she said, but that year 200 churches campaigned against the justices and outside money poured into the state, she said. Yet the three justices did not form campaign committees or raise funds, Ternus said.

“I’m pretty confident I would do the same thing again,” she added. TV ads accused the justices of being political. “If we had started campaigning,” she said, “we would have been proving their point… It would have contributed to politicization of the judiciary.”

Ternus said focus groups revealed that voters didn’t understand the difference between judges and other elected officials and didn’t know what makes a good judge. Civic education is badly needed, she said, as well as “robust judicial performance evaluations.”

In Mexico, the threat is more physical, said José Ramón Cossío Diaz, former associate justice of Mexico’s Supreme Court of Justice. In the past, Cossío said, there was an unwritten rule that the drug cartels did not attack judges, but that is changing.

On June 16, gunmen killed a Mexican federal judge and his wife outside their home. The judge had overseen cases involving criminal organizations. Many judges fear open warfare by the cartels, Cossío said. “I am very, very afraid. The judges are in a very bad position,” he said.

In Poland, the threat comes from the nationalist government that took control of the presidency and parliament in 2015, said Judge Dariusz Masur of Poland’s Regional Court in Krakow. Judges who criticize the government are harassed and can be punished, he said.

In 2018, the government lowered 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 Poland’s judges. ABA leaders have visited Poland to support the judges, and ABA presidents have issued several statements about the problem there.

The program was co-sponsored by the ABA Section of Litigation and the National Conference of Specialized Court Judges, part of the ABA Judicial Division.

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