Assaults on the Judiciary Attacking “the Great Bulwark of Public Liberty” Report of the 1998 Forum for State Court Judges Assaults on the Judiciary Attacking “the Great Bulwark of Public Liberty” Report of the 1998 Forum for State Court Judges __________________________________________________________________________________________________ When quoting or reprinting any part of this report, credit should be given to The Roscoe Pound Foundation. Permission to reprint a paper should be requested from: The Roscoe Pound Foundation 1050 31st Street, NW Washington, DC 20007 202-965-3500 Library of Congress Card Catalog Number: 99-085807 ISBN: 0-933067-20-8 ©1999 The Roscoe Pound Foundation THE INDEPENDENCE OF THE JUDGES IS THE GREAT BULWARK OF PUBLIC LIBERTY, AND THE GREAT SECURITY OF PROPERTY. —JUSTICE JOSEPH STORY MISCELLANEOUS WRITINGS Table of Contents EXECUTIVE SUMMARY . iii FOREWORD . 1 BACKGROUND ON THE CURRENT CONTROVERSY SURROUNDING JUDICIAL INDEPENDENCE . 3 PAPERS, ORAL REMARKS, AND COMMENTS . 13 Protecting Judicial Independence in a Politicized Environment Professor Robert O’Neil . .13 Oral Remarks of Professor O’Neil . 27 Comments by Panelists . 33 Honorable Robert G. Flanders . 33 Paul McMasters . 36 Thomas L. Jipping, Esq. 40 Mark S. Mandell, Esq. 43 Response by Professor O’Neil . 45 When Do Legislative Actions Threaten Judicial Independence? Professor Erwin Chemerinsky . 49 Oral Remarks of Professor Chemerinsky . 63 Comments by Panelists . 71 Honorable Mary Ann G. McMorrow . 71 Professor Stephen Wermiel . 76 Mark Behrens, Esq. 78 Eugene I. Pavalon, Esq. .81 Response by Professor Chemerinsky . .84 Assaults on the Judiciary: Attacking “the Great Bulwark of Public Liberty” i LUNCHEON REMARKS BY PROFESSOR MICKEY EDWARDS . 85 THE JUDGES’ RESPONSES . 91 POINTS OF AGREEMENT AND CLOSING COMMENTS . 131 APPENDICES Appendix A: Participant Biographies . 141 Appendix B: Judicial Attendees . 145 ABOUT THE ROSCOE POUND FOUNDATION . 151 ii Papers of The Roscoe Pound Foundation Executive Summary n July 11, 1998, in Washington, DC, 116 judges, representing thirty-eight Ojurisdictions, took part in The Roscoe Pound Foundation’s Forum for State Court Judges. The judges discussed the current controversy over the independence to which the judiciary is constitutionally entitled. Attempts to curtail judicial independence have come in many forms, including organized negative campaigns to drive judges from office for making unpopular decisions, denial of adequate funding for the judiciary, legislative attempts to control outcomes of litigation, and attempts by the legislative and executive branches to treat the courts as ordinary state government agencies rather than as a co-equal branch of government. Two legal scholars who have been at the forefront of scholarship on the constitutional issues surrounding judicial independence presented papers addressing different facets of this controversy. Their papers were scrutinized by panels, each consisting of a second legal scholar, a lawyer with a differing viewpoint, a judge, and a trial attorney. Responses to the panels’ comments were then made by the paper presenters. I Professor Robert O’Neil, founding director of the Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia, presented a paper titled “Protecting Judicial Independence in a Politicized Environment.” He began with some historical examples of assaults on the judiciary and contrasted them with the current, more troubling spate of judicial criticism. He demonstrated that attacks on judges now come from many segments of the political spectrum, that those who wish to attack judges can do so now more readily than ever because of greatly enhanced communications, and that the freedom of judges to respond to criticism has generally diminished. He also reviewed the effect of court rules and codes of conduct on judges’ ability to defend themselves. Looking to the other side of the bench, he noted that, while nonlawyer criticism is fully protected under the Constitution’s “clear and present danger” standard for free speech, lawyers, as officers of the courts, are more susceptible to sanctions reasonably intended to protect the judicial process. Finally, Professor O’Neil discussed several proposals to counter assaults on the judiciary, including changes in the way judges are selected and retained in office, public education campaigns, and reform of libel law to give judges more recourse to the courts when they are defamed. He also advocated giving judges more latitude in efforts to educate the public directly on the judiciary’s work and its crucial role in our system. I Professor Erwin Chemerinsky, of the University of Southern California Law School, delivered a paper titled “When Do Legislative Actions Threaten Judicial Independence?” He surveyed numerous past attempts to limit judicial independence in both state and federal courts, whether prompted by unpopular decisions, a desire to deny access to the courts to particular classes of litigants, or antipathy to certain types of litigation. He identified the constitutional foundations of judicial independence and cited eight types of legislative actions that may infringe on judicial powers in different ways. He then considered their constitutionality, noting that legislative challenges based on separation of powers Assaults on the Judiciary: Attacking “the Great Bulwark of Public Liberty” iii requirements must take a number of factors into account. He concluded that a number of curtailments of independence currently encountered by judges may be unconstitutional, while others may not be. The dividing line between the two types, he warned, is not clear. Following the commentaries on the papers, the judges divided into seven discussion groups to give their own responses to the papers and, under a guarantee of anonymity, discuss a number of standardized questions. During lunch the judges heard an address by Mickey Edwards, a former member of Congress from Oklahoma and currently a Lecturer in Public Policy at the John F. Kennedy School of Government at Harvard University. Professor Edwards discussed a number of ramifications of judicial independence and described current efforts to protect it through the newly formed Citizens for Independent Courts, of which he serves as co-chair. At the closing plenary session, the discussion group moderators reported that consensus had emerged from the dialogue within individual groups, along the following lines: I There are a number of different approaches to judicial selection, retention, and discipline. All of them have both advantages and disadvantages, both to the judiciary and to the public. The judges were divided, for instance, on the question of “merit” selection versus public election and on lifetime tenure versus periodic re-examination of a judge’s fitness for office. I Many judges had experienced negative campaigns during judicial elections, often instigated by special interest groups. Criticism is most wide open when elections involve endorsements by political parties. Campaigns by single-issue groups and unwarranted personal attacks are very difficult, if not impossible, to defend against. Negative publicity campaigns are sometimes mounted against judges by the news media and by candidates in legislative and executive branch elections. I The public has a right to criticize judges, within the bounds established by the law of defamation. Lawyers also should be permitted to speak about judges within the bounds of their codes of professional ethics. I Judges should have the right to speak out in their own behalf, but their use of that right must be tempered by the responsibility not to take a position on an issue likely to come before them in court in the future. In some situations, it is best to have third parties, such as a court public information specialists or bar representatives, make a measured response to attacks on the judiciary, just as is done by the other branches of government. Avoiding any appearance of partiality or other impropriety is a constant consideration. I Credibility with the public is essential, and education of the public about the workings of the judicial system and its role in our democracy is important. Judges can and should participate in this effort, speaking to public organizations, opening their proceedings to public view, and even holding some court sessions outside the courthouse—for example, in public schools. iv Papers of The Roscoe Pound Foundation I Many kinds of legislative actions can and do erode judicial independence, some of them in retaliation for particular decisions or lines of decisions. The greatest single legislative threat to judicial independence is the failure or refusal to provide adequate funding for the judicial branch. The best solution to that is to educate legislators and carry on a continuing dialogue with them, particularly in this era when there are fewer lawyers in the state legislatures. I Judges now work in a different, and more difficult, environment than they did previously, and they cannot afford to isolate themselves from the rest of government and from the public. In the past, the judiciary has been too secretive and too isolated from the public at large, and to some extent judges are now paying the price of past “sins.” But judges also are caught up in an era in which both the executive and legislative branches have lost public respect, and to a degree the judiciary is suffering the same loss of respect, by association with the rest of government.