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Judiciary Can Independent Judging Survive?

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Judiciary Can Independent Judging Survive? THE WAR ON THE JUDICIARY CAN INDEPENDENT JUDGING SURVIVE? Report of the 2013 Forum for State Appellate Court Judges Forum Endowed by Habush Habush & Rottier S.C. THE WAR ON THE JUDICIARY CAN INDEPENDENT JUDGING SURVIVE? Report of the 2013 Forum for State Appellate Court Judges Forum Endowed by Habush Habush & Rottier S.C. When quoting or reprinting any part of this report, credit should be given to the Pound Civil Justice Institute. Permission to reprint a paper should be requested from: Pound Civil Justice Institute 777 Sixth Street, NW, Suite 200 Washington, D.C. 20001 www.poundinstitute.org [email protected] The endower, Habush Habush & Rottier S.C., has no control over the placement of information in or the editorial content of the Report of the 2013 Forum for State Appellate Court Judges. Library of Congress Control Number Pending ISBN: 978-0-933067-06-6 ©2014 Pound Civil Justice Institute We are the guardians of this country through the constitutions of our states and the United States Constitution. If we don’t do it right, even at the price of losing our jobs, then we are going to lose. —A judge attending the 2013 Forum The most respect that our country has comes from our rule of law. Wherever you go, people admire this country. They love it. That’s the reason they want to come here—because of the rule of law. —A judge attending the 2013 Forum TABLE OF CONTENTS FOREWORD .....................................................................................................................................................1 INTRODUCTION ............................................................................................................................................3 PAPERS, ORAL REMARKS, AND COMMENTS ......................................................................................5 “The Political Transformation of the American Judiciary” Professor Charles Gardner Geyh, Indiana University Maurer School of Law ........................5 Oral Remarks of Professor Geyh ................................................................................................ 17 Comments by Panelists, Response by Professor Geyh, Questions and Comments from the Floor, and Responses ..................................................... 22 “Honoring Your Oath in Political Times” Professor Amanda Frost, American University Washington College of Law ....................... 37 Oral Remarks of Professor Frost ................................................................................................ 55 Comments by Panelists, Response by Professor Frost, Questions and Comments from the Floor, and Responses ..................................................... 59 CLOSING PLENARY...................................................................................................................................................72 REMARKS OF HONORABLE TANI CANTIL-SAKAUYE, CHIEF JUSTICE OF CALIFORNIA ........75 LUNCHEON REMARKS ............................................................................................................................. 79 Introduction by Justice Jim Kitchens, Supreme Court of Mississippi ........................................... 79 Remarks of Oliver E. Diaz, Jr. ............................................................................................................ 80 COMMENTS FROM THE JUDGES .......................................................................................................... 87 POINTS OF AGREEMENT ....................................................................................................................... 125 APPENDICES .............................................................................................................................................. 127 Faculty Biographies ........................................................................................................................... 127 Judicial Attendees .............................................................................................................................. 133 Forum Underwriters ......................................................................................................................... 137 About the Pound Civil Justice Institute .......................................................................................... 138 Officers & Trustees of the Pound Civil Justice Institute................................................................ 139 Papers of the Pound Civil Justice Institute ..................................................................................... 141 THE WAR ON THE JUDICIARY: CAN INDEPENDENT JUDGING SURVIVE? i FOREWORD The Pound Civil Justice Institute’s twenty-first Forum for State Appellate Court Judges was held on July 20, 2013, in San Francisco, California. Like all of our past forums, it was both enjoyable and thought-provoking. In the forum setting, judges, practicing attorneys, and legal scholars were able to consider the increasingly important issue of judicial independence in the face of political challenges. The Pound Civil Justice Institute recognizes that the state courts have the principal role in the administration of justice in the United States, and that they carry by far the heaviest of our judicial workloads. We try to support them in their work by offering our annual Forums as a venue where judges, academics, and practitioners can have a brief, pertinent dialogue in a single day. These discussions sometimes lead to consensus, but even when they do not, the exercise is always fruitful. Our attendees always bring with them different points of view, and we make additional efforts to include panelists with outlooks that differ from those of most of the Institute’s Fellows. That diversity of viewpoints always emerges in our Forum Reports. Our Forums for State Appellate Court Judges have been devoted to many cutting-edge topics ranging from the court funding crisis, to the decline of jury trial, to separation of powers and secrecy in litigation. We are proud of our Forums and are gratified by the increasing registrations we have experienced since their inception, as well as by the very positive comments we have received from judges who have attended in the past. A full listing of the prior Forums and their content is provided in an appendix to this report, and their reports—along with most of our other publications—are available for free download on our Web site: www.poundinstitute.org. The Pound Institute is indebted to many people for the success of the 2013 Forum for State Appellate Court Judges: • Professor Charles Gardner Geyh of the Indiana University Maurer School of Law, and Amanda Frost, of the American University Washington College of Law, who wrote the papers that started our discussions; • the Honorable Tani Cantil-Sakauye, Chief Justice of California, for welcoming us to San Francisco and sharing her views on educating the public on the functions of the courts; • our luncheon speaker, Oliver Diaz, formerly a justice of the Mississippi Supreme Court; • our panelists—Praveen Fernandes, James Bopp Jr., Honorable R. Fred Lewis, Edward Zebersky, Honorable Russell Carparelli, David Biderman, Honorable David Wiggins, and Patrick Malone; • the moderators of our small-group discussions—Jennie Lee Anderson, Sharon Arkin, Michael Brown, Simona Farisse, Bill Gaylord, Shawn McCann, Betty Morgan, Ellen Relkin, and Lanny Vickery for helping us to arrive at the essence of the Forum, which is what experienced state court judges think about the issues we discussed; and THE WAR ON THE JUDICIARY: CAN INDEPENDENT JUDGING SURVIVE? 1 • the Pound Civil Justice Institute’s efficient and dedicated staff—Jim Rooks, our executive director and forum reporter, and Mary Collishaw, our program manager—for their diligence and professionalism in organizing and administering the 2013 Judges Forum. It goes without saying that we appreciated the attendance of the distinguished group of judges who took time from their busy schedules so that we might all learn from each other. We hope you enjoy reviewing this report of the Forum, and that you will find it useful to you in your future consideration of matters relating to judicial independence. Kathryn H. Clarke President, Pound Civil Justice Institute, 2011-13 2 THE WAR ON THE JUDICIARY: CAN INDEPENDENT JUDGING SURVIVE? INTRODUCTION On July 20, 2013 in San Francisco, California, 148 judges, representing 40 jurisdictions, took part in the Pound Civil Justice Institute’s twenty-first annual Forum for State Appellate Court Judges. The judges examined the topic, “The War on the Judiciary: Can Independent Judging Survive?” Their deliberations were based on original papers written for the Forum by Professor Charles Gardner Geyh of the Indiana University Maurer School of Law (“The Political Transformation of the American Judiciary”), and Amanda Frost, of the American University Washington College of Law (“Honoring Your Oath in Political Times”). The papers were distributed to participants in advance of the meeting, and the authors also made less formal oral presentations of their papers to the judges during the plenary sessions. The paper presentations were followed by discussion by distinguished commentators: Praveen Fernandes, an attorney at the Justice at Stake Campaign in Washington, D.C.; James Bopp Jr., an attorney from Terre Haute, Indiana; the Honorable R. Fred Lewis, a justice of the Florida Supreme Court; Edward Zebersky, an attorney from Ft. Lauderdale, Florida; the Honorable Russell
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