The President’s Letter

With Justices Breyer and O’Connor as co-chairs, The American Law Institute and Georgetown University Law Center cosponsored a conference on the state of the judiciary at the end of September. The CNN television network recently aired the program "Judges on Trial" as part of its Broken Government series. The November elections reinforce the importance of judicial selection, impartiality, accountability, and independence. On September 18, I had the privilege of delivering a Constitution Day lecture on judicial independence at Golden Gate University School of Law as part of the Jesse Carter Distinguished Speaker Series, which honors Jesse Carter, a 1913 graduate of the law school and California Supreme Court Justice from 1939 to 1959. I would like to share with you a condensed version of my remarks, the full text of which will be published in the Golden Gate University Law Review, Volume 37, Number 2 (2007).

JUDICIAL INDEPENDENCE:
A CORNERSTONE OF LIBERTY

It is fitting that Golden Gate University Law School honors Justice Carter with this lecture in his name. In light of his example and his independent spirit that attends this lecture, my theme is "Judicial Independence: A Cornerstone of Liberty." The views I state are personal.

1. What is "Judicial Independence?"

The term in my view connotes judges whose tenure is reasonably secure, who have been selected carefully (recognizing that systems of selection vary), and who will decide cases according to the rule of law unconstrained by political fear, fear for physical safety, or other undue pressures, and uninfluenced by the status of the parties, the threat of salary reductions, or extraneous considerations . . . . 

Drawing on Isaiah Berlin’s influential Two Concepts of Liberty, Professor Pamela Karlan identifies two "judicial independences," one to be "free from certain kinds of pressures or influences," and one to be "free to envision and realize certain goals" and policies, essentially those contained in the Constitution, statutes, and the common law rather than held individually by judges. There is relatively "strong consensus for the negative [or ‘freedom from’] conception of judicial independence" but, understandably, more criticism and little consensus on the positive or "freedom to" conception—and, in particular, on how that is manifested in particular cases.

It bears emphasis that there are relationships between and among our three branches of government. A good example is the Supreme Court’s recent decision in Hamdan v. Rumsfeld, explaining that the President’s unilateral decision to institute military tribunals for Guantanamo prisoners disregarded statutory constraints imposed by Congress and that the proper way for a President to address such matters is to work with Congress. Judicial independence should not connote the image of some isolated jurist in the desert completely separated from reality, including separated from the legislature and the executive, or immune from constraints or criticism. After all, legislatures provide the funds for the salaries of judges and the operations of their courts and enact jurisdictional statutes; executives often nominate or appoint judges; and within constitutional limits both the legislature and the executive can change the law that a judge has applied, sometimes in an "ongoing colloquy" between the branches. Judicial accountability is an integral part of judicial independence.

2. Why is Judicial Independence Important?

Our Declaration of Independence describes the British king as having "made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries." Thomas Paine, providing common sense for the American Revolution, said "Where, you may ask, is our king? In monarchies, the king is the law. In our democracy, the law is king."

In contrast to monarchical domination, Article III of our Constitution provides that federal judges "hold their Offices during good Behavior" and that their compensation "shall not be diminished during their Continuance in Office." Independence of judges from the will of the executive and from threats to their compensation is crucial. Security of judicial tenure also is crucial, although it varies among jurisdictions.

Judicial independence is especially important today because the judiciary and the rule of law are under relentless and severe attacks from various quarters: In ways that both challenge Congress and may implicate the judiciary, the President is bypassing the separation of powers, for example, by the misuse of so-called signing statements saying that he will or may not follow an act of Congress, a practice recently and correctly condemned by the American Bar Association. A notorious example is his recent statement that he will not follow the McCain Amendment forbidding any U.S. official to use torture or cruel, inhuman, or degrading treatment on prisoners if he thinks that doing so would be necessary to prevent terrorist attacks. . . . Congress and the President sought to influence the judicial outcome of a single state case in the Terri Schiavo matter. Congressman Tom DeLay, then powerful, now disgraced, declared that "We will look at an arrogant, out of control, unaccountable judiciary that thumbed their noses at Congress and the President." The "time will come," he said, "for the men responsible for this to pay for their behavior." . . . . In recent years judges and members of their families have been murdered or threatened with violence.

In earlier years, our country’s faith in and adherence to the rule of law have been a cause for hope for people as well as an inspiration to judges not just in America but also in other countries. If that faith evaporates and injustice consequently increases, the repercussions will be global. As Martin Luther King wrote in Letter from Birmingham Jail, "Injustice anywhere is a threat to justice everywhere. We are . . . tied in a single garment of destiny. Whatever affects one directly, affects all indirectly."

3. Can We Distinguish Between Appropriate Criticism and Inappropriate Criticism of the Judiciary?

Judges are subject to procedural and substantive constraints, such as principles of personal jurisdiction, subject matter jurisdiction, standing, ripeness, mootness, applicable statutes and rules, the common law, and precedent and stare decisis. Courts other than the Supreme Court of the United States or the highest state court on a nonfederal issue are also subject to appellate review. They are not free to disregard these constraints. In appellate courts, panels of three or more judges provide an additional safeguard against one judge disregarding applicable law. Although federal judges are rarely impeached and removed from office, the circuit courts of appeal occasionally administer discipline. State judges are subject to censure and removal for misconduct or disability, for example, in California by a Commission on Judicial Performance and ultimately by the state supreme court, and to removal by the electorate—for any reason or for no reason—when they run for reelection or retention. Moreover, most judges want to establish a good reputation with their colleagues, the profession, and the public.

On various matters, judges are appropriately accorded discretion and their exercise of that discretion is reviewable only for abuse. It is important to have judges exercise their discretion with judicial temperament, impartiality, and wisdom together with a sense of responsibility for seeking the right answers to the questions before them.

What are the limits, if any, to criticism of individual judges, individual decisions, and the judiciary as an institution? Apart from violations of the criminal law or acts that constitute contempt of court, given the extensive protections of the First Amendment, there are very few limits on what is permissible criticism, as distinguished from what is appropriate or fair criticism.

Thomas Jefferson, for example, challenged life tenure for judges and said that "man is not made to be trusted for life, if secured against all liability to account," and that judges were "thieves of liberty." Theodore Roosevelt, who had appointed Justice Holmes, strongly expressed his disappointment after Holmes sided with the trusts in the Northern Securities case, in this way: "I could carve out of a banana a judge with more backbone." Franklin Delano Roosevelt tried to pack the Supreme Court and accused it of establishing itself as a "third house of Congress—a superlegislature." . . . . 

4. What Can We Do About the Public’s Inadequate Understanding of Judicial Independence?

I start with the following suggestions:

• If the criticism is not based on an objective standard but simply on the speaker’s personal opinion, or religious belief, or disagreement with the decision or the underlying law, it should be unpersuasive to fair-minded listeners. The same goes for attacks on the integrity or motives of judges. Disparaging a judge as "soft" on criminals, or "political," "immoral," or "anti-religious" does not invoke objective standards.
  
• Because of ethical considerations, judges rarely respond to attacks on their rulings. Such attacks are a cheap shot for complainers or bullies like Tom DeLay. Most people have an innate sense of fairness. If adequately informed, perhaps they may be unwilling to be persuaded by a cheap shot.

We have a long way to go, however, in educating the public about judicial independence.

About 30 years ago, I served on the California Commission on Fair Judicial Election Practices. At a public hearing in Los Angeles, witnesses did not comprehend the difference between state or county legislators campaigning on their past records and future programs and judicial candidates who are neither advocates for their decisions nor sponsors of program agendas. Some witnesses wondered why, for example, judges should not have to defend their sentences in particular cases. The public does not seem to appreciate that every judicial election presents both the opportunity to educate the public about the judiciary and the risk of misinformation and partisanship. I do not sense any improvement in public understanding or appreciation for the role of our judiciary over the past 30 years. In fact, the situation has gotten worse. With the reduced emphasis on teaching civics in the schools, the prominence of so-called judicial reality shows that do not necessarily correspond to reality, the general failure of the media to educate the public seriously and in depth, and public apathy in general, the public does not have a good understanding of the role of judges or the importance of their independence.

Such education [of the public] is not going to occur just in schoolrooms, new classes in civics, street law programs, and visits by students to courts, important as they are. It must occur also in civic meetings, in Internet discussions, in professional organizations, in neighborhood gatherings, in volunteer groups, at the family dinner table, and in the media. In state judicial election campaigns, incumbent judges as well as candidates can educate voters about judicial independence, as Wisconsin Chief Justice Shirley Abrahamson and others have urged. Justices Breyer, O’Connor, and Kennedy have taken the lead in educating our citizens about our Constitution. Such judges are setting the example of what responsible members of our profession can do.

The media has a special responsibility. Consider, for example, the infamous McDonald’s hot coffee case, which became a poster child in the campaign against the judiciary. Most newspaper articles focused on the $2.7 million verdict for punitive damages. Their selective reporting in general did not report the third-degree burns and permanent scarring the elderly victim suffered; the painful skin grafts she endured; the fact that she was willing to settle for her medical expenses of about $20,000 and that the company offered her only $800; the fact that McDonald’s coffee was served about 20 degrees higher than what was standard in the trade; the 700 previous complaints against McDonald’s for similar complaints; the company’s indifferent response but eventual payment of nearly three quarters of a million dollars to settle such complaints; or the reduction by the trial judge of the punitive damage award to $480,000, after which the parties reached a confidential settlement.

Americans that are informed are ready to renew their natural self-reliance and resiliency. An informed and self-reliant and resilient public is ready to engage in our democracy. An engaged public will resist abuses of power and threats to judicial independence. It will demand that its President stop abusing executive power and that Congress stand up to him. It will replace timid legislators with courageous ones, authoritarian legislators with freedom-loving ones, and venal legislators with honest ones. Its expressions and actions, literally and figuratively, will be the footsteps of Americans. When elected representatives hear those footsteps, not just once or twice, or here and there, but every day, pounding in a crescendo of strong beats, then, maybe, they will begin to do what is right.

5. Why Is Better Public Understanding of Judicial Independence Important,
Especially Now?

Unlike the world astronomers who by resolution can eliminate Pluto from our solar system, we cannot erase the last six years of our political history. In reviewing these years, I venture to predict that future political historians will help us understand four points:

• First, the current President aggressively, relentlessly, and often lawlessly attempted to increase executive power and succeeded in doing so. When the President lacks executive restraint, the other two branches, Congress and the judiciary, in specific cases, are challenged either to check him and keep our system in balance or acquiesce. Acquiescence by one branch increases the pressure on the other.
  
• Second, the Congress as a whole did not stand up to the President, and the majority often accommodated or even applauded him. There were significant exceptions on particular matters such as the McCain Amendment against torture and cruel, inhuman, and degrading treatment, which the President then undermined with his signing statement. Together with the minority—which itself could have done better—the handful of so-called "moderate" Senators in the majority could have protected both the country and the United States Senate as an independent institution but did not muster the sufficient collective courage, capacity, and will to just say "No" to the President . . . .  By contrast, on June 1, 1950, then freshman Republican Senator Margaret Chase Smith from Maine delivered her Declaration of Conscience against McCarthyism at a time when such a statement was a rare act of great political courage. Although joined by only six colleagues at the time, and disparaged by McCarthy as "Snow White and her Six Dwarfs," her brave act helped inspire the country to reject McCarthyism and the Senate to censure him.
  
• Third, although the Supreme Court was responsible for allowing the President to take office without pursuit of further voting or procedures in the Constitution, it also held in later cases that he had exceeded his powers. Hamdan v. Rumsfeld is the most recent and notable example. It did so, however, with only a fragile majority of justices who displayed courage, judicial independence, and the quiet force of reason.
  
• Fourth, although there were some courageous voices, the American public as a whole was phlegmatic, uninformed, fearful, apathetic, and unengaged.

Will you be a part of changing this sorry history? Are you willing to let the Supreme Court brave the hurricane winds of politics alone?

When Judge Learned Hand gave his famous speech entitled The Spirit of Liberty to new citizens in 1944, he said: "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it."

Fifty years ago, when I was in my first year of military service, and when our country was emerging from the McCarthy Era, we faced the real and imagined threats of communism and a Soviet regime that had executed millions of people and enslaved millions of others in hard labor. With reference to Judge Hand’s haunting words, my father [Justice Roger J. Traynor of the Supreme Court of California] then remarked as follows: "The judges whose job it is to apply [the Constitution] must carry liberty in their hearts even when other men have ceased to. Who is to say that liberty is dead in the hearts of men who are silent? Liberty is not lost suddenly, catastrophically; it is lost imperceptibly, by erosion. Who is to say it is irretrievably lost until it has died in the hearts of those whose job it was to care that it lived in the hearts of others?"

It is time for our country and our people and institutions to reaffirm our basic values and show courage in the defense of our liberty. Our liberty and our values are our best defense as well as our best weapon against terror. Our country needs activist citizens. It is time for our profession to take the lead. A cornerstone of liberty is judicial independence. Whenever politicians or others engage in collateral attacks on judges, lawyers and their bar associations should expose the fallacies immediately, set the record straight, and educate the public. A central purpose of a law school is to foster analysis, advocacy, and leadership. We as lawyers can help citizens understand the importance of an independent judiciary and support it. We can help them understand the difference between legitimate criticism and inflated rhetoric, partisan sniping, and other collateral attacks. President James Madison understood the "Constitution as the people’s law, which was to be revered and not remolded by their servants." It seems little to ask that "We the People" stand up for our law, our Constitution, and our judges.

Michael Traynor
President