Why Should We Care About Independent And Accountable Judges? by Bruce Fein and Burt Neuborne Reprint from Judicature, the Journal of the American Judicature Society Brennan Center for Justice at NYU School of Law About the Brennan Center for Justice The Brennan Center for Justice at New York University School of Law unites thinkers and advocates in pursuit of a vis- ion of inclusive and effective democracy. The Center’s mission is to develop and implement an innovative, nonpartisan agenda of scholarship, public education, and legal action that promotes equality and human dignity, while safeguarding fundamental freedoms. About the Judicial Independence Project The Brennan Center's Judicial Indepen- dence Project combats threats to the independence of the judiciary, the ulti- mate guarantor of liberty in a democratic society. The project focuses on protect- ing judges from politically motivated attacks on their rulings, safeguarding the judicial selection process (including elec- tions in certain states), and fighting improper efforts to constrict judicial jurisdiction and power. This article is reprinted by permission from Judicature, the journal of the American Judicature Society,Volume 84, Number 2, September-October 2000. For more information, contact: Brennan Center for Justice at NYU School of Law 161 Avenue of the Americas, 12th Floor New York, NY 10013 212.998.6730 FAX: 212.995.4550 Email: [email protected] www.brennancenter.org Acknowledgments The Brennan Center would like to express its appreciation to the founda- tions that have generously supported its work on this publication, in particular, and the Judicial Independence Project, in general: the Deer Creek Foundation and the Open Society Institute. The Center also thanks staff attorney Mark Kozlowski, who facilitated the collabora- tion between the authors of this essay with tenacity and finesse. About the Authors Bruce Fein has labored and written for more than 25 years to promote a judicial philosophy of modesty: namely, adhering reasonably closely to the language and purpose of constitutional and statutory provisions in deciding cases. He entertains a strong presumption against creative or inventive interpret- ations under the aegis of a “Living Constitution” that gives birth daily to new meaning. Mr. Fein has forcefully championed his philosophy as Associate Deputy Attorney General and General Counsel to the Federal Communications Burt Neuborne has Commission under the Reagan adminis- spent the last 35 years attempting to tration, Visiting Fellow for Constitutional persuade judges to view the Constitution Studies at the Heritage Foundation, as a living document that must be Adjunct Scholar at the American reinterpreted in each generation to meet Enterprise Institute, weekly columnist for “the felt necessities of an age.” He has argued that a Constitution, to survive The Washington Times, and as a witness be- over time, must be drafted in broad fore numerous congressional committees. terms, which cannot be read literally, because majestic generalities like “the Mr. Fein is equally fervent in the belief equal protection of the laws” do not that competing philosophies of judging have a literal meaning. In his view, the are constitutionally legitimate, and that beginning of any effort to read the they should do battle before independent Constitution is the text, but the text courts during the course of litigation rarely provides more than general guid- without outside political forces placing ance. Judges must go beneath the text thumbs on a particular outcome. Better to the ideals that the text was intended that the judiciary be independent, to preserve, and ask, in each case, how according to Fein, than that it decide all those ideals can best be preserved in the cases the way he would prefer by enlist- modern world. Constitutional judging is, ing a political sledgehammer. in Prof. Neuborne’s view, a creative act, and judges are full partners in the consti- tutional enterprise. Prof. Neuborne has passionately defended his view as Legal Director of the Brennan Center for Justice and John Norton Pomeroy Professor of Law at NYU School of Law, Legal Director of the American Civil Liberties Union, and member of the New York City Human Rights Commission. But he advocates with equal zeal the importance of independent judges, even if those judges adhere to philosophies at odds with his own. Foreword Bruce Fein and Burt Neuborne occupy different ends of the political spectrum. Fein’s conservative perspective has been evident in his Washington Times columns and government service under the Reagan administration. Neuborne’s progressive vision has long infused his scholarly writings and drives the litiga- tion he undertakes at the Brennan Center for Justice at NYU School of Law. On issues from voting rights to the use of public funds for religious schools, from the right to privacy to the exclusionary rule, Fein and Neuborne are in diametri- cally opposing camps. But on one issue–an issue central to the functioning of our constitutional system –Fein and Neuborne see eye to eye.When it comes to the value of judicial independ- ence, they can set aside their differences and speak with one voice. This jointly authored essay, Why Should We Care About Independent and Accountable Judges?, explains how partisans on both sides of the aisle can care deeply about politics and yet strive to prevent it from influencing judging. Fein’s friends on the right and Neuborne’s friends on the left should listen to what the authors say. Why Should We Care About Independent and Accountable Judges? Judicial independence in the U.S. has proved superior to any alternative form of discharging the judicial function. It would be folly to squander this priceless constitutional gift to placate political partisans. by Bruce Fein and Burt Neuborne The rule of law depends on judges. civil liberties, but urge extreme defer- Judges ensure that neither partisan ence in economic matters. In sum, a majorities, nor overzealous officials vio- Babel of interpretive theories that will late our constitutional rights. Judges give affect the outcome of many controversial concrete meaning to statutes and regula- cases are available to American judges, tions whose texts are frequently ambigu- lawyers, and law professors. ous. State judges make "common law" that, unless modified by statute, governs That is why politicians and interest groups enormously important day-to-day issues care so deeply about who gets to be a like legal responsibility for harms associ- judge, and about how judges perform in ated with guns, tobacco, or alcohol. office. Interest groups lobby vigorously for the selection of judges they believe The difficult legal problems that judges will vote to decide cases favorable to their confront often do not yield a single cor- cause, whether the cause is pro-life, rect answer. No consensus has emerged pro-choice, pro-labor, pro-affirmative among judges, scholars, or the broader action, pro-federalism, pro-property legal community about the best way to rights, pro-business, pro-law enforce- interpret ambiguous language in the ment, pro-environment, pro-free speech, Constitution, statutes, and administra- or pro-capital punishment.They excoriate tive regulations, or how exuberantly judicial opinions they dislike, without pay- judges should employ their common law ing much attention to a judge’s reasoning. powers to create judge-made law. There is, of course, nothing wrong with When interpreting the Constitution or a caring about who gets to be a judge, and statute, some champion a theory of criticizing a judge’s behavior in office. "original meaning or intent." Others Both activities are protected by the argue in favor of reading ambiguous text First Amendment. Criticism of judges is in harmony with evolving standards of pivotal to saving them–and us–from the decency or morality.Yet others insist on delusion that judges are infallible. But an interventionist approach when everything in civilized life is a matter of addressing individual rights implicating degree. Allowing for both the accounta- 2 Brennan Center for Justice at NYU School of Law bility of judges to popular opinion in Recently, some Members of Congress discharging their crucial tasks, and judi- have gone far beyond healthy and cial independence from politics, is no informed criticism of court rulings to exception. demand impeachment of federal judges whose decisions they dislike, more often It is troublesome that a growing array because of political calculation than of voices seem to measure judicial because of deficient reasoning. Nothing appointments and performance by apply- could be more damaging to the rule of ing outcome-determinative litmus tests. law than for judges to fear that if they Judges who decide (or who would decide) rule against the prevailing political cases one way receive high marks. winds, they may be removed from Everyone else receives failing grades. office. The Founders provided for a Whether a judge has interpreted, or will written Constitution, a Bill of Rights, interpret, the law in a legitimate, respon- and federal judges with life tenure to sible, and reasonable manner is irrelevant. safeguard against majoritarian tyranny. Law, for such strident voices, is simply Allowing politicians to threaten to partisan politics by other means. Some remove federal judges whose rulings even argue that a litmus test on outcomes displease them strikes directly at the should be used when the President selects Founders’ efforts.