Judicial Independence - A Sine Qua Non for Rule of Law and Constitutionalism, by Leonard Schroeter

Leonard W. Schroeter
[note: attachments not included online]

Introduction

For at least two millennia, the struggle for rule of law has necessarily focused upon judicial process. For those whose understanding that the most indispensable element of that process is the judiciary, there has been a marked consensus that judicial independence is the factor, without which abuses of power would prevail.

Constitutionalism, ancient and modern, whether footed in natural law, common law, or formal written documents ranging from Charters like Magna Carta to our enduring American constitutions, required both interpretation and implementation by the judiciary. The pantheon of jurists and scholars, lawyers and philosophers who understood and pledged their lives to these concepts are many. They contain the great names of the Common Law: Coke and Blackstone; the American Founders: notably, John Adams, Jefferson, Madison and Hamilton; our first great jurist: John Marshall; and a galaxy of judges and justices of our courts; law teachers, and philosophers; and the thousands of lawyers and judges who committed their careers to the protection of "certain unalienable rights" knowing that, "to secure these Rights, Governments are instituted" based upon the rule of law.

When we use the term "judicial independence" the usage tends to be focused on the freedom of the individual judge from outside influence and control. Given the historic tradition of individualism in the United States, this is hardly surprising. Much of the judicial process is conducted in trial settings by an individual judge. Therefore, the judge's state of mind, security, self-confidence, integrity, intellectual capabilities, knowledge, and other factors that might permit a sense of autonomy resulting in individual independence is central to our question. But the variabilities are substantial. They include capacity, experience, background, emotional state, and multiple factors affecting the individual judge's decision-making.

Pragmatically, however, as that term is used, it should at least mean the achievement of a social goal that protects the judicial branch as an institution ? not only individual judges. Appellate courts, unlike trial courts, have an institutional character. Their sense of independence is, in part, at least, the product of their collective consciousness concerning that independence. Increasingly, trial courts in larger communities are developing collective attitudes and standards about their conduct and reactions. The judiciary as a whole has become more organized, structured, and sometimes acts in collective forms, through the organization they have created. It increasingly has an institutional character. This becomes an important factor in the achievement of a culture of judicial independence.

It is an accepted, basic premise, albeit simplistic, to view judicial independence as only immunization from external fear and pressure in what should be impartial, and sometimes unpopular, decisionmaking. The judicial process may also include the need for wisdom and the capability of balancing competing values. This is a central judicial role in American society where constitutional principles require an understanding of separation of power; the judicial protection of individual rights; as well as the commitment to, and explication of the rule of law. But it is apparent that the legitimacy of the judiciary in a democratic system, also requires public confidence in the integrity and bravery of the guardians of justice, as well as an understanding of the limits of judicial power and influence. Interest groups, media, elected representatives, government executives and bureaucrats, all potentially may seek to affect judicial decisionmaking. Judges therefore must understand that the values of a constitutional democracy may limit their power; and that the judiciary must define and apply those limits in order to retain public confidence. The tension between judicial independence and judicial accountability is constant and unavoidable.

Most judges believe that they have backbone and courage. Their aspiration is certainly to do the right thing. The more serious question is whether they know what the right thing is. What is the right thing? Well, it may be different in different societies. Those differences persist when you ask: What is a judge? Or, What is the judiciary? The question may be, whether the right thing is the same for a traffic court judge as it is for an administrative judge, or a juvenile judge, or a Justice of the Supreme Court. Yet each of them must have the knowledge and skill to know how to find the law, the statutes and precedents, to respect the rights of the parties, and to be absolutely impartial between the contestants. But there are differences in doing the right thing depending upon the setting. In criminal law, the burden of proof protects the rights of a criminal defendant. Some areas of law are designed to protect the government (the people's) interest. There is law that favors the "best interest" of a child or a dependent person. And there are areas of law that favor the protection of the integrity of the system itself.

But nowhere in the law can there be found a principle that suggests, that a judge should permit the pressures of contributors, the criticisms of media, the politics of supporters, or the blandishment and temptations of ambition to prevent doing the right thing legally. And is it possible for a "judge" to be independent if he or she can be discharged at will by the legislative or executive branch? If so, one can hardly be described as a judge. There is a difference between the judicial role where the court is resolving individual disputes, and where it is protecting fundamental rights, as a constitutional court. The answers to these questions arise out of the growth and character of our law. A basic element of the Common Law is that it grew on a case by case basis. And even "the case and controversy" jurisdiction of the federal courts is based on the premise that individual controversies are the test and purpose of the law itself. Whether the judicial role is conflict resolution or the protection of rights (constitutional issues, particularly where those rights are "fundamental"), the goal is justice. The process of resolving conflicts fairly and impartially is an essential function of justice. All judges should keep the fora open and accessible. Courts implement conflict resolution through the process working; and by knowledgeable even-handedness of law application. And when fundamental rights are involved, and constitutional principles need to be applied, the independent judge must be the implementer and guarantor of the basic value of the society. If any of our great jurists have come close to defining the meaning of judicial independence, my choice is Benjamin N. Cardozo, the epitome of judicial and social wisdom. In his brilliant, sensitive, beautifully written monograph, "The Nature of the Judicial Process," he stated more poetically and succinctly than any other work I know, the wisdom of the ages as to how a judge could be "independent," a condition that is simply defined by Webster's Dictionary as "free from the influence, control, or determination of another or others; self-governing; free from influence or bias." See Attachment A for his views.

In a time when the judiciary is under widespread institutional attack, it is useful to revisit the jurisprudential sources of our constitutional authority. Almost 50 years ago, I taught a course at Northeastern University on Constitutionalism: English and American. I read and learned from a great classic: Constitutionalism, Ancient and Modern. It was written by Charles Howard McIlwain, the Eaton Professor of the Science of Government at Harvard University. In the introduction, McIlwain wrote in 1940:

The time seems to be propitious for an examination of the general principle of constitutionalism ? for perhaps never in its long history has a principle of constitutionalism been so questioned as it is questioned today, never has the attack upon it been so determined or so threatening as it is just now. The world is trembling in the balance between the orderly procedures of law and the processes of force which seem so much more quick and effective.

For McIlwain, the choice has always been, "whether in the end we decide for law or for force."" And to maintain rule of law, we must retrace the history of our constitutionalism as the essential bulwark of the triumph of reason, liberty and order. In his view, the idea of a written constitution was a "new conception of the conscious formulation by a people of its fundamental law." McIlwain stated that the overview was probably never better indicated than by Bolingbroke, when he said in 1733:

By constitution, we mean, whenever we speak with propriety and exactness, that assemblage of laws, institutions and customs, derived from certain fixed principles of reason, directed at certain fixed objects of public good, that compose the general system, according to which the community hath agreed to be governed ? We call this a good government, when ? the whole administration of public affairs is wisely pursued and with a strict conformity to the principles and objects of the constitution.

But in both the old and new views of constitutionalism, a governmental act contrary to the constitution is an act of "power without right." McIlwain's slender monograph traces the origins of contemporary constitutionalism to Greek philosophic thought, notably Aristotle and Plato, who explored the fundamental relations of government to law. The chapter on "the constitutionalism of Rome and its influence" was described as the essential precursor for the creation and growth of English constitutionalism. A dominant figure in Roman constitutionalism was Cicero, lawyer, jurist, political leader, great orator, and, most significantly, a brilliant writer whose works not only survive but constituted an essential corpus of jurisprudence, well-known and frequently cited by English Common Law scholars and jurists, and by our Founding Fathers and legal scholars. The reading of Cicero was a mandatory duty of an educated person in 18^th and 19^th Century America.

He has recently been described as "Marcus Tullius Cicero, Who Gave Natural Law To The Modern World." His career is intimately associated with the rise of the Roman jurists; the professionalization of law; and the legitimization of law through procedures for the trial of cases within the Roman judicial system.

The values and institutional character of natural law and Roman law were incorporated in Common Law and English constitutionalism. English lawyers and scholars were versed in these ideas and the development of the judiciary in our new nation was inseparable from the Common Law itself, which was fully incorporated into American jurisprudence. Its methods and values remain the central fibers in American constitutionalism, which are intertwined with the philosophic premises of natural law, and the experience of Roman law. Until the recent past, it would have been unthinkable, in our law schools, and in those who studied law through apprenticeship and self-education, not to be familiar with Cicero, Sir Edward Coke, or the more recent works, such as The Rise and Progress of the English Constitution by E.S. Creasy, The Common Law by Oliver Wendell Holmes, Jr., The Expansion of the Common Law by Sir Frederick Pollock, A Sketch of English Legal History by Frederick W. Maitland, The Spirit of the Common Law by Roscoe Pound, The English Constitution by Walter Bagehot, all of which were still considered to be relevant to our legal education when I entered law school 50 years ago.

Without the understanding distilled from the experience of the past, we are without a compass to guide us as to the role of the judiciary, and thus the meaning of judicial independence. Happily, we are saved from our legal illiteracy by not only professors of political science, but also those of legal history. Norman F. Cantor is such a person. His recent book, Imagining the Law: Common Law and the Foundations of the American Legal System, has traced this history in a book, "written for the layman and the beginning student, although some practicing attorneys may find it interesting and useful." Cantor's bibliography is particularly useful for our purposes. See Attachment B.

Perhaps the best evidence of the intense concern by the maker of our constitutions for the preservation and protection of an independent judiciary can be verified by a review of early state constitutional provisions designed to ensure that protection. Among the provisions that were thought essential were those providing for separation of powers, ensuring tenure of judges, providing for fixed and adequate salaries for them, limiting impeachment or removal of judges, and prohibiting multiple office-holding by them, as an additional bulwark for separation of powers. These are found in some state constitutions written before the United States Constitution, including Massachusetts, North Carolina, Delaware, Maryland, New Hampshire, and in others of the original 13 states, shortly after the adoption of the Federal Constitution. See chart, listing these provisions, Attachment C.

However we think about the law, or rule of law, or democracy, or freedom, or constitutionalism, or access to justice, we are thinking about the social function performed by judges. We necessarily understand that that function is a product of history. We cannot understand the growth and meaning of human rights without an understanding that it is a continuum that throughout history has become more and more inclusive. But still we need to know the sources of these ideas. We are enabled to defend and protect our judicial branch, just as we support and implement rule of law, and constitutional principles, by understanding the sources of our values. It would be incredible hubris to believe that the American Scriptures ? the Declaration of Independence, United States Constitution, the Bill of Rights, the Gettysburg Address ? or even the most profound and beautifully stated soaring pronouncements of our Supreme Court and our great Justices ? were born full-grown without antecedents.

In fact, in 1776, and thereafter, that jurisprudence and its writers and teachers were not only highly relevant, but mandatory for our Founding Fathers. They continued to be so as our state constitutions were written. Their values were essential as our constitutional jurisprudence developed. Our constitutional courts included great scholars of natural law and the Common Law. They were fully familiar with the philosophers of the Enlightenment. They relied upon and looked to the wisdom of thinkers in many countries, without negating characteristics which were specifically a product of our own history. This process solidifies the underlying values of our relationship to each other and our society which can only be retained as they are applied to multiple, and sometimes rapid, changes in our world. Our constitutional structure, and its underlying values, have led our courts to encompass, and incorporate within our law, not only customary international law, but universally recognized human rights and the expanding character of the Laws of Nations.

It is, of course, true that in all historic epics, the competing values expressed in law have been focused on power and wealth, and its possession, use and abuse in organized societies. How these conflicts of values were resolved was and is a primary function of law, which is ultimately decided by decision makers. Where rule of law exists, increasingly, the interpretation of the meaning of that law was by judges. In the American colonies, English constitutionalism and the Common Law was the foundation for the role of the judiciary in the soon-to-be-born new nation.

Although there had been an ebb and flow of the intensity of concerns over judicial independence, and the separation of powers, these issues antedated the creation of the Republic. Much insight as to that controversy can be found in the contemporary writings of John Adams, viewed by his contemporaries as America's greatest constitutional scholar, and the most legally brilliant lawyer of the Founding Fathers. His diary entries, and letters in 1772-1773 were gathered in a treatise entitled "The Independence of the Judiciary: A Controversy between William Brattle and John Adams." Adams? writings reflected his comprehensive knowledge of the Common Law, and its history. He was schooled in the writings of Lord Edward Coke, and had followed closely the difficult effort at the development of an independent judiciary in the mother country. The principal, pre-Revolutionary controversy in the colonies related to the term of appointment of judges, their remuneration, and political interference with both their decisions and their tenure. In a lengthy letter concerning the judicial function, to the Boston Gazette, January 10, 1773, Adams wrote:

The wisdom of the law is very great; for it was an encouragement to men to fit and prepare themselves for the execution and performance of those offices, that when by such a capacity they had obtained them, they might act in them safely without fear or dependence upon favor. And when they had served in them faithfully and honestly and done their duty, they should not be removable at pleasure. And on the other side, the people were safe; for injustice, corruption, or other misdemeanors in an office were sufficient causes for removal and displacing the offender.

See Attachment D for Adams views on constitutionality, judicial review, and additional comments on how judicial independence can be secured. Only a few pages of the 61 page comments are attached.

In Vol. IV of The Works of John Adams, there are additional insights as to his views on the judicial function and its relationship to other facets of government. These are found in the treatise: "Thoughts on Government: Applicable to the Present State of the American Colonies." Early in 1776, Adams wrote:

The dignity and stability of government and all its branches, the morals of the people, and every blessing of society depend so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent from both. So that it may be a check upon both as both should be checks upon that. The judges, therefore, should always be men of learning and experience in the laws, of exemplary morals, great patience, calmness, coolness, and attention. Their minds should not be distracted with jarring interests; they should not be dependent upon any man, or body of men. To these ends, they should hold estates for life in their offices; or, in other words, their commission should be during good behavior, and their salaries ascertained and established by law. For misbehavior, the grand inquest of the colony, the House of Representatives, should impeach them before the Governor and Council, where they should have time and opportunity to make their defense; but, if convicted, should be removed from their offices and subjected to such other punishment as should be thought proper.

John Adams? views about judicial independence were shared by most of his colleagues. Their fealty to their Common Law and English constitution heritage was precisely why they felt the need to declare independence, as the Declaration of Independence asserts. Their views of power and its abuse in England and in history led them to seek a safeguard for centralization of power through an elaborate constitutional mandate for separation of powers. For them, whatever else may be true, the judiciary remained "the least dangerous branch" of our polity. That phrase came from Alexander Hamilton in The Federalist II 78, "The Judges as Guardians of the Constitution." Hamilton said:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the Judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The Legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The Judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the Executive arm even for the efficacy of its judgments.

Hamilton's comment became the title of an important book, The Least Dangerous Branch: The Supreme Court at the Bar of Politics, by Alexander M. Bickel. Bickel, a distinguished Yale Professor of Constitutional Law, in the book's opening paragraph, states:

The least dangerous branch of the American government is the most extraordinarily powerful court of law the world has ever known. The power which distinguishes the Supreme Court of the United States is that of constitutional review of actions of the other branches of government, federal and state. Curiously enough, this power of judicial review, as it's called, is not derived from any explicit constitutional command . . . Congress was created very nearly full blown by the Constitution itself. The vast possibilities of the presidency were relatively easy to perceive and soon, inevitably, materialized. But the institution of the judiciary needed to be summoned up out of the Constitutional vapors, shaped, and maintained; and the great Chief Justice John Marshall ? not single-handed, but first and foremost ? was there to do it and did. If any social process can be said to have been "done" at a given time and by a given act, it is Marshall's achievement. The time was 1803; the act was the decision in the case of Marbury v. Madison.

Marbury v. Madison, for almost 200 years, has been a crucial foundation stone in our constitutional system, because as the title of Bickel's first chapter explains, it was responsible for "The Establishment and General Justification of Judicial Review." As Bickel noted:

The authority to determine the meaning and application of a written constitution is nowhere defined or even mentioned in the document [U.S. Constitution] itself. This is not to say that the power of judicial review cannot be placed in the Constitution; merely that it can't be found there.

But Justice Marshall, as a skillful and scholarly jurist, understood and explained the essential constitutional character of the decision. Marbury was not the first case to enunciate the principle of judicial review. Precedents existed in state courts, and in lower federal courts, where judges had refrained from following a law they considered contrary to the provisions of the state or federal constitution. Marshall's comprehensive rationale for the practice of judicial review was justified by the concepts of limited government, separation of powers, the written constitution, and most of all, the rule of law. The decision in Marbury had antecedents in the common law, and most notably in the writings of Edward Coke. Colonial lawyers, most notably James Otis and John Adams, had relied upon Coke's writings and the Magna Carta itself for such views. They had cited as a fundamental constitutional principle Coke's statement in Dr. Bonham's Case (1610), that parliamentary statutes contrary to custom, rationality and reason were invalid. In The Federalist, No. 78, Hamilton argued that limited government required that courts of justice be empowered to "declare all acts contrary to the manifest tenor of the Constitution void." Thus, Marbury provided the continuity derived from Magna Carta, but enlivened and explicated by the brilliant jurisprudence of Coke, making Magna Carta the symbol for the essential principles of the English Constitution and the palladium of English liberties.

For Americans engaged in a fierce struggle against a king and a Parliament who collectively claimed absolute power over the colonies, Coke was the principal articulator of the Common Law and the English constitution. They found Coke's understanding of the Magna Carta principles equally suitable to their needs, including the precept that no group of men, and no institutions, are above the law, and that any statute that violates the principles of Common Law are null and void. Coke articulated these principles in his most famous of opinions:

The Common Law will control acts of Parliament, and sometimes adjudge them to be utterly void: For when an act of Parliament is against common right and reason ? the Common Law will control it and adjudge such acts to be void.

The history of American law with specific reference to the role of the judiciary, and its relationship to constitutionalism, will be visited again and again here and in the Attachments to this paper. It is the subject matter of many volumes and books that have collected major works and commentaries on the subject. In 1962, Henry J. Abraham in his book The Judicial Process does as any student of the subject must do: Explore the nature of law and its origins, and trace the growth and permutations in American law, contrasting it to that of other societies. Professor Abraham's selected bibliography covers 31 pages. Since it was published well before the cybernetic revolution (and may not be easily retrievable by current technology), this voluminous bibliography not only is a major resource, it is also a powerful exhibit to the extensiveness and variability of scholarly attention paid to the judicial process, including the essential element of judicial independence. See Attachment E.

The year before the Abraham text, two important books appeared. The first, Handbook for Judges, was published by the American Judicature Society. Its Table of Contents is self-descriptive. The Preface to Part l, on "judicial ethics," states:

Certain Canons of Judicial Ethics were "succinctly summed up by St. Paul centuries ago when he advised the Thessalonians to abstain from all appearance of evil."

Part 2 on "the essential qualities of the judge" is even more succinct:

. . . a great judge must also be a great man. (John Buchan)

Socrates? classic definition of the qualities of a judge were similarly brief and to the point:

Four things belong to a judge: To hear courteously; to answer wisely; to consider soberly; and to decide impartially.

In Part 3, "the challenge to the judiciary" is described by Daniel Webster:

Justice is the great interest of man on earth.

In Part 4, "the spiritual side of judging" is encapsulated by the Prophet Micah's eloquent commentary:

. . . and what doth the Lord require of thee, but to do justly and to have mercy and to walk humbly with thy God.

See Attachment F.

In their book Courts, Judges and Politics: An Introduction to the Judicial Process, Professors Walter Murphy and Herman Pritchett comprehensively collect every facet of the judicial process. They include excerpts from commentaries and cases beginning with Sir William Blackstone, Alexander Hamilton, Alexis d'Toqueville, Theodore Roosevelt, Oliver Wendell Holmes, Benjamin N. Cardozo, and Felix Frankfurter, with their perceptions of the judicial role. The contents constitute not only a bibliography, but they map the questions and issues that necessarily engage us. See Attachment G.

Twenty years later, a new collection: Courts, Law and Judicial Process was edited by S. Sidney Ulmer, another distinguished political science professor. (The systematic scrutiny of the judicial processes and the role of judges including the essential character of the preservation of judicial independence has largely been undertaken by political scientists rather than the judiciary itself, or by bar organizations.) The contents of the Ulmer collection is Attachment H. It includes excerpts from more contemporary judicial figures and law professors, with less reference to the historic traditions.

Taken as a whole, these studies validate the historic continuity of the American judiciary, and its special role in American life. They mirror the competing values between the role of elected democracy, and the protection of traditional constitutional values. The necessity for judicial independence is the underlying recurring theme, whatever the discipline, experience, or politics are, of the writers.

Although it is true that throughout our history there has been "popular dissatisfaction with the administration of justice," at various times of unrest or even crisis, the remarkable fact is that the relative stability of our society has been and should be attributed to the perceived integrity of our justice system. Generally, we have had confidence in the accessibility and fairness of our constitutional democracy; and, that the polity, whatever its faults, served its people well, at least in comparison to its competitors. Although change was required, and sometimes essential, it could be achieved within the Constitutional framework, and peaceably through rule of law. Independent judges could be trusted to invalidate constitutional excesses, and to provide appropriate resolution of disputes including the most important policy ones. The Civil War was our most searing, tragic breakdown of rule of law, and the incapability of our law and courts and our political leaders to face courageously the oncoming crisis.

In 1906, Roscoe Pound, Professor and Dean at Harvard Law School, but then a Nebraska lawyer, delivered an address at the Annual Meeting of the ABA entitled, "The Causes of Popular Dissatisfaction with the Administration of Justice." Pound's analysis, made early in this century, continues to have major interest as the Twentieth Century comes to a close. It reminds us of the intractability of the problems that are inherent in our judicial process. It reminds us that some of the same popular dissatisfaction remains, and for the same reasons. It also informs us that Pound had causes for optimism that could hardly be shared by today's lawyers and judges. His inquiry was limited essentially to civil justice. The reason, he states, is that:

For while the criminal law attracts more notice, and punishment seems to have greater interest for the lay mind than the civil remedies of prevention and compensation, the true interest of the modern community is in the civil administration of justice. Revenge and its modern outgrowth, punishment, belong to the past of legal history.

Attached as Attachment I are the first and last few pages of this 18-page address.

Leaving aside the mounting onslaught of the last 15 years, the greatest crisis of judicial independence, for the bench and bar at least, arose from the so-called "Court-packing plan" of President Franklin Delano Roosevelt. In his message to the Congress on February 5, 1937, the President transmitted a recommendation to reorganize the judicial branch of the Federal Government, "in order that it may function in accord with modern necessities." The entire message, read by me for the first time more than 60 years after its delivery, appears to be a proposal for court reorganization, to increase personnel and funding for the federal courts, and to encourage retirement opportunities for senior judges. The President's message focused upon delay and inconsistency in resolution of cases involving issues of public concern. It also called for notice to the Attorney General to have an opportunity for the United States to present evidence and be heard on cases involving the constitutionality of acts of Congress, to permit the government to defend governmental action, even though the case might be a dispute between private parties. An accompanying message from Attorney General Homer Cummings added to the request that the new positions created should not be in specific circuits or districts, but "should constitute a mobile force, available for service in any part of the country, at the assignment and direction of the Chief Justice."

On its face, the proposals did not appear to attack, or for that matter, to affect the independence of the judiciary. It would, of course, have permitted FDR to appoint a large number of federal judges, who presumably would agree with his political views. The outburst in the media, largely hostile to the New Deal, was to label it the "Court-Packing Plan." A firestorm of disapproval swept the country, inflamed by media and the introduction into the Senate of a joint resolution proposing an amendment to the Constitution of the United States providing that any law held unconstitutional by the Supreme Court shall be valid if reenacted by Congress. That was followed some weeks later by a similar joint resolution proposing an amendment to the Constitution relating to the powers of the courts to hold laws unconstitutional and in substance forbidding the historic process of judicial review. The President fought back, with a Fireside Address, which, if read today, had as its bottom line the same arguments currently being made by Robert Bork and Edwin Meese. Judicial supremacy is only acceptable if it's your judiciary.

The American Bar Association, expressing deep concern over the proposals to re-make the Supreme Court, authorized a referendum of its 29,616 members. 18,695 ballots were returned, with 86% against the President's proposals. The ABA, feeling it should "not presume to speak for the lawyers of America until there had been an expression of opinion from non-ABA member lawyers" sent out 142,320 ballots to non-member lawyers. A little less than one-third of those members responded and voted against the Supreme Court proposal by a ratio of 4 to 1. In reporting that referendum, the ABA stated:

The lawyers of American in every section, and state of the Union, are more aroused over the Supreme Court proposal, and the threat to an independent judiciary, than they have been on any previous occasion since the Civil War.

The ABA categorized this issue as "Shall we retain an independent judiciary?" "Shall we keep the form of constitutional government, adopted by our forefathers, of three separate and independent branches?" "Shall we continue to rely upon our untrammeled courts and reject force as a method for settling disputes between our citizens and our governments?"

The considered opinion of the lawyers of America, democratically arrived at, is "YES, we want an independent judiciary; we want to retain our form of constitutional government, we want the people alone, by amendment, to pass upon any change in the Constitution that the Executive and the Congress deem necessary for the social and economic needs of the people.

These general principles remain substantially the same to this date. The most current policy statement of the ABA perspective was reported as follows:

Judicial Independence: One of the cornerstones of our judicial system is the independence of the judiciary. Accordingly, the ABA opposes Congressional initiatives that infringe upon the separation of powers between Congress and the courts and have the potential to inhibit the independence of the judiciary. For example, there is a threat to judicial independence posed when judges are held personally liable for official acts, and the ABA therefore supports excluding state and federal judges from injunctive relief and liability for attorney fees under the Civil Rights, Attorney Fees Award Act of 1976 for actions taken in their judicial capacity.

The classic study of these events of 40 years ago can be found in "The Struggle for Judicial Supremacy: A Study of a Crisis in American Power Politics," by Robert H. Jackson (Vintage Books 1941). Justice Jackson's remarkable book deserves to be read in a time when judicial independence is once again under attack. It is of particular interest since Jackson was FDR's Solicitor General, Attorney General, and appointed by the President to the Supreme Court in 1941, where he served 13 illustrious years before his untimely death. The book itself was written before his appointment to the Supreme Court. His insights are those of a participant, a party loyalist, but also a brilliant jurist. Its Preface and Contents page are Attachment J.

FDR's first opportunity to appoint a justice to the Supreme Court occurred in the fall of 1937, with his controversial appointment of Justice Hugo L. Black. Justice Black, in his book, A Constitutional Faith set forth his judicial philosophy with respect to "the role of the courts in our constitutional system." He discussed the charges of judicial activism and judicial restraint that had been levied at the court and its justices, and clarified his views as to judicial independence. Pages from the first chapter of this monograph are Attachment K.

In assessing the meaning and circumstances of the application of concerns about judicial independence, we are not limited to the lessons of history nor the observations of our great jurists and legal philosophers. Much insight can come from powerful thinking and writing, sometimes found in the scholarly and passionate opinions of committed judges. No judge in the history of the State of Washington can surpass the scholarship and commitment of recently retired Justice Robert Utter. In the Matter of the Salary of the Juvenile Director was an opinion where Justice Utter found it necessary to explore basic constitutional principles. The case arose in a proceeding relating to the salary of a probation officer where the county appealed from an order following a writ of mandate, which directed its payment of a salary increase. That invoked the necessity of reviewing the powers of the court, and the development of the separation of powers doctrine. The opinion is Attachment L. See, in particular, Justice Utter's discussion as to why "judicial freedom from improper influence is essential."

Lastly, before exploring the current crisis in judicial independence, it would be helpful to suggest that weighty as our subject matter is, it should be leavened by wit and wisdom and the knowledge of the frailties of certitude. Jerome Frank, a distinguished lawyer, public official, federal judge, and writer, in his book Courts on Trial: Myth and Reality in American Justice, makes the irreverent statement, and asks the proper questions. My favorite is Chapter X, "Are Judges Human?" Frank dedicates his book "To Learned Hand, our wisest judge, whose writings on the judicial role are indispensable to our understanding." Under "Contents," are the chapter headings which suggest the rich variety of issues we have barely touched here. See Attachment M.

Almost 40 years passed from the failure of President Roosevelt to curb the Nine Old Men on the Supreme Court, to the early onsets of attacks upon the judiciary, with a much broader, and devastating agenda for the future of judicial independence. This time the site was the State of California, and the target was Rose Elizabeth Bird, the Chief Justice of the California Supreme Court. It was, of course, true that in the 1950s after the United States Supreme Court outlawed forced segregation and required law enforcement officers not to break the law in the course of their work, "Impeach Earl Warren" signs blossomed in many parts of the country. Justice Warren became the symbol for some of "judicial activism," and the target of segregationists and other political groups who disliked the Warren Court's implementation of the Constitution.

The attacks upon Justice Bird, and other judges in the California courts, are described in Framed: The New Right Attack on Chief Justice Rose Bird and the Courts by Betty Medsger. Medsger, an award-winning investigative reporter for The Washington Post and The New York Times, taught journalism at Stanford University and at San Francisco State. Her book is a carefully researched analysis of the factual circumstances surrounding these events. Despite its shocking one-word primary title, neither her mustering of the evidence, nor her use of language are in any way overstated. Indeed, 15 years later, her concerns have been confirmed, and retrospectively we can understand what an overwhelming disaster for judicial independence occurred in California. Indeed, the California purging of Bird and other Supreme Court justices set the pattern for what has followed.

Richard Reeves, a prize-winning author and journalist, has written a Foreword and Medsger has provided an Introduction to the book. They are Attachment N. As Daniel Schorr commented at the time, "The issue is not a justice, but justice." What was central to the New Right's attack on Bird and the courts is that it was a conscious plan to inundate the media and poison the judicial election with demagogic distortions, false allegations, and ideological attacks designed to destroy a highly placed woman justice, and, in the process, confidence in the courts. These methods were highly successful. Most judicial watchers have concluded that the California Supreme Court has been an intimidated wasteland ever since. More important was the fact that all of the techniques and some of the participants in these events, continue to this day on a national basis to follow the prototype tested, and perfected in the attacks on Justice Bird.

The January-February 1997 issue of Judicature magazine was dedicated to articles concerning judicial independence. One of the articles published was "Reigning In the Federal Judiciary," by Edwin Meese III and Rhett DeHart (DeHart is an assistant to Meese). Mr. Meese, of course, was the General Counsel and intimate adviser for Ronald Reagan when he served as Governor of California during the Bird purge. He also was President Reagan's Attorney General, personal lawyer and friend. He now is the Ronald Reagan Fellow at the Heritage Foundation. His article in Judicature is a checklist of his long-term radical right views on law, justice, courts, welfare, criminal law, employment law, abortion, homosexuality, private schools, taxation, same sex marriages, and the entire agenda of what in 1978 was called the "New Right." It is, of course, no longer "new," just as the continued crescending attacks on the courts, following the California blueprints, have permanently altered our judicial landscape.

The Meese article is Attachment O. It is prototypic of the character and views ? politically, ideologically, and jurisprudentially ? of Mr. Meese, and of the widespread apparatus of foundations, think-tanks, and legal groups that follow that party line. Mr. Meese was a recurrent and important figure in the Medsger book. He orchestrated much of what happened. Just as he was the lawyer for Ronald Reagan, he also was the lawyer for William P. Clark, who was appointed to the California Supreme Court, replacing Chief Justice Bird, and who continued to be a close adviser to President Reagan. Mr. Meese was there from the beginning. He is still here.

But even with the knowledge of this background, we need to ask ourselves why there is so much acute concern for judicial independence and rule of law at this time, particularly in the hearts and minds of lawyers and judges. We know that these concerns have been present from time to time in American legal history. But at the close of this century, the intensity of the focus upon judicial independence is overwhelming.

On the one hand, more media attention about courts and justice, reach broader segments of the population than would have been hitherto imaginable. This helps create views and opinions in every crevice in this nation reached by popular entertainment. Law programs abound. Court TV reaches millions of homes. Our pundits and commentators intensely follow successive waves of trials, indictments, grand juries, and prosecutor investigations. They are reported in television, radio, print media, and are discussed on buses and bars, at cocktail parties and lunch counters. The opinions of many American are continually solicited by the media and out of all of this discerning observers have noted that our justice system and our entire political process is facing a crisis of legitimacy. Poll after poll demonstrate that our people have little or no confidence in the principal institutions of our society. They show their disdain for the electoral process by not voting; and when they vote, they often indicate that they feel they have no meaningful participation because they have little choice. Their contempt generally for their elective officials, who they believe to be corrupt, is pronounced. Lawyers are distrusted, along with most other authority figures in this society, including doctors, and increasingly, journalists. Yet the appetite for scandal, disillusionment, and the pandering to the already existing distrust, seems insatiable. It is hardly surprising that the legal profession is deeply worried by their seeming loss of the mantle of integrity and the pessimistic views as to the likelihood of justice within the system.

Although judicial independence has been on the agenda since pre-Revolutionary Colonial America, the resurgence of attacks upon it in recent years have been astonishing. The issues appear in many guises, and for many reasons. A chronic one is budget crises for courts, directly related to the low priority the public gives to issues of law and justice. The only exception is their infatuation for prisons, and punishment, both of which receive monetary priority.

At a 1993 forum for state court judges on "Preserving the Independence of the Judiciary: The Dual Challenge of Democracy and the Budget Crisis," co-sponsored by the Roscoe Pound Foundation and Yale Law School, the conference report noted:

The issue of judicial independence is most strenuously tested in two areas. The first is getting and staying on the bench. The 50 states and the District of Columbia present a patchwork quilt of judicial selection methods, including partisan and non-partisan elections, so-called merit selections, as well as appointments by the governor or the legislature. Even within states, methods may vary widely according to the particular court for which a judge is selected. The need periodically to come before the voters poses an inherent threat to judicial independence in that judges may be pressed to tailor their decisions to suit public opinions.

The second area is adequate funding. The lack of sufficient resources to carry out constitutionally-mandated judicial functions is increasingly seen both as a threat to the integrity of the court system and to the independence of the judiciary itself.

These issues are contemporary, but also chronic. There are multiple approaches to them. Some involve delicate questions of constitutional challenge to the abuse of legislative or executive power. Others focus on the electoral process itself and the abuse of money and powerful interests controlling those elections. Each of these issues have produced substantial literature and a smaller amount of creative, litigative approaches.

In this state, the Walsh Commission Report of March 1996, "The People Shall Judge: Restoring Citizen Control to Judicial Selection," made a series of recommendations, which, in the Commission's judgment, constituted an "appropriate balance among competing goals: qualified judges; voter information and judicial accountability; and judicial independence." Those recommendations remain on the table. But the concerns of the Walsh Commission, and of those committed to maintaining judicial independence have still not been furthered.

Similarly, the second issue raised by the Pound 1993 Forum provoked discussion, but no answer to the question posed by Professor Steven L. Carter of Yale Law School, "Does democracy threaten judicial independence?" Carter's opening comment was:

Of course, democracy threatens judicial independence. The question is the extent to which it does. Much of our history is represented as struggle by forces of democracy to gain a degree of influence over judicial decision making. Part of the problem is deciding the best way of designing a conception of judicial independence that will work well within the contours of this democracy.

As it relates to voting issues, there clearly can be a tension that arises, for an elected official, including judges, involved in an elective process. The problem, of course, is that we make the assumption that democracy and our electoral process are synonymous. That assumption is severely clouded by the overwhelming influence of power, money, and purchased media that makes the assumption of meaningful choice and meaningful understanding of the issues, doubtful.

Other judicial selection problems present thorny difficulties, most notably the Congressional hijacking of Presidential judicial appointments. There has been widespread criticism of the United States Senate by Chief Justice Rehnquist, the American Bar Association, and many other responsible bar and public interest organizations. There would appear to be broad consensus that a prompt appointment and confirmation of nominees to the federal courts is essential, not only for the effective and efficient administration of justice, but for the independence of the judiciary. Most responsible legal organizations and public interest groups have called upon the President to appoint nominees to vacant federal judicial positions in a prompt manner, and for the Senate to hear and vote on pending nominations as is their constitutional responsibility. The unconscionable delay in the making of such appointments has led to the filing of lawsuits seeking to mandate appropriate action.

A national movement sponsored by rightwing corporate groups has stimulated state legislative actions to "restore the balance of power between the branches of government as established by the people in their state constitutions." These acts exemplified by House Bill 2060 introduced in the Washington State Legislature in the 1997 session, are called "The Balance Of Powers Restoration Acts." It would permit state legislatures to override decisions of the State Supreme Court, directly destroying the capability of the judiciary to determine constitutional issues. Its shorthand title has been the "Anti-Marbury v. Madison Act." Fortunately, the effort failed in the 1997 session. It was so radically antediluvian in its extreme rejection of our most fundamental Constitutional principles, that responsible newspapers throughout the state exposed it for what it was, and editorialized against its passage.

But similar efforts are continually being made nationally. They are sponsored by the Washington, D.C.-based American Legislative Exchange Council (ALEC). ALEC model bills have been introduced in numbers of states. The goals of ALEC, its funders and sponsors, in supporting the mis-named "Adoption of Common Law Act" are well articulated by ALEC's parent, the American Tort Reform Association (ATRA), which is comprised of large corporate entities, such as the insurance industry, the tobacco industry, etc. They state candidly that the legislation is needed because almost 50 state legislative tort reform bills have been nullified in the last 15 years on constitutional grounds. The bill, if passed, will forbid judges from ruling on the constitutionality of such so-called tort reform proposals, by blocking judicial review of any such legislation.

This form of legislation has also been introduced to prevent judicial review in other areas of the law, essentially under the guise of taking from the courts, jurisdiction over legislation in areas of particular concern to the powerful special interests involved. Apart from its radical contempt for basic American constitutional principles, its effect upon the integrity of the judiciary is ominous.

The American Judicature Society has been a consistent stalwart in support of judicial independence. Any bibliography of that subject matter would find repeated publications raising and discussing the issues. At the AJS 1996 Annual Meeting, a spirited panel discussion discussed "what is judicial independence." It was moderated by Erwin Chemerinsky, Constitutional Law Professor at the University of Southern California Law Center. The panelists represented multiple points of view and raised many questions. A copy of it is attached; see Attachment P.

The November-December 1996 Judicature issue featured an article by Stephen B. Burbank, Professor of Law at the University of Pennsylvania, on "The Past and Present of Judicial Independence: History and Context Help Sort Out and Illuminate Many Contemporary Issues Concerning Federal Judicial Independence." See Attachment Q.

Judicature's January-February 1997 issue was completely committed to exploring judicial independence. Its Introduction to the subject matter, reviewed dramatic events that had occurred over the past year, such as the resignation of Federal Judge Lee Sarokin of the Third Circuit (see Attachment R), the controversy over U.S. District Judge Harold Baer, Jr., the attacks upon Justice Penny White of the Tennessee Supreme Court, and the intensifying climate of unfounded attacks upon individual judges or their judicial decisions. These articles are attached (Attachments S, T and U).

The Judge's Journal is a quarterly periodical of the Judicial Division of the American Bar Association. Its Winter 1997 issue was committed to "Court Bashing and Reality ? Judicial Independence Issues." The lead article, "The Variety , the Virulence and Threats to Judicial Independence," by Francis J. Larkin, a former justice of the trial court of Massachusetts, and now the Dean of the Southern New England School of Law, is Attachment V. Also attached from the same issue is Justice Rehnquist's "Remarks of the Chief Justice of the United States, and the Evolution and Independence of the Federal Courts." See Attachment W.

Other issues discussed in the Judges Journal included an article on the attacks upon the New York Court of Appeals for its alleged softness on crime. It included a comparative examination of criminal dispositions of the New York court, and neighboring high courts. The result documented that the attacks initiated by New York's Governor George Pataki and much of the New York press, had been sensationalized, and factually inaccurate. The New York courts and their Chief Judge Judith Kaye were attacked irresponsibly and in similar fashion to the attacks upon Chief Justice Rose Bird of California years before.

Other articles expressed concern over other judicial independence issues, including the implications of line item vetos, and accountability in administrative law. These raise questions of concern that require attention and should be on our agenda.

Chief Justice Judith S. Kaye of the New York State Court of Appeals responded to her critics as a part of a symposium on judicial independence. Her presentation, "Safeguarding a Crown Jewel: Judicial Independence and Lawyer Criticism of Courts," sketched the historic background of judicial independence with particular reference to the limits of judicial free speech, citing decisions and legal articles on the subject. She then detailed the campaign of defamation and misinformation emanating from Governor Pataki and elements of the press. She defined what judicial independence is and what it is not, citing case and commentaries and the Model Rules of Professional and Judicial Conduct. She proposed a largely ignored remedy, available to judges:

In one important respect, however, judges can do more in the way of communication about their decisions. Judges speak through their rulings, and they should always try to speak fully, clearly, and comprehensibly. Judicial decisions, and the basis for them, should be accessible in every sense. They should be readily attainable and as understandable as legal material can be.

And as for the critics, she responded in the words of Judge Learned Hand:

Let judges be severely brought to brook, when they go wrong, but by those who will take the trouble to understand.

The major efforts to create such understanding usually is case-specific, requiring the justices themselves to make their reasoning and their opinions clear. This helps law and constitutional values to be understood, not only by the profession, but by the public. But the profession and individual lawyers have responsibilities as well, when unfair attacks upon the judiciary occur.

The ABA has energetically sought to accept those responsibilities. The recent ABA "Report on the Commission of Separation of Powers and Judicial Independence," in its "Findings, Conclusions and Recommendations," concluded that efforts to modify the appropriate balance between independence and accountability must be a subject of concern for the organized bar, since existing procedures were appropriate. Similarly, efforts to amend the Constitution to interfere with the protections for judicial independence were condemned. The Commission referenced recent events as posing a threat to judicial independence, including "demagogic attacks and threats of impeachment" and accusations of "judicial activism" and "soft on crime" against individual judges. These practices were condemned. They noted that public faith in the judicial system has been eroded by such attacks. They stated that disagreement with a particular decision is not a proper basis for initiating impeachment proceedings, and public officials should refrain from threatening such improper acts. They objected to "those who resort to pejorative terms merely because of political or ideological disagreement with a decision." They opposed Congressional limits on or curtailment of the jurisdiction of the federal courts, and urged Congress to resist any proposal that would strip federal courts of their jurisdiction to hear and decide any particular constitutional issue for the purpose of effecting changes in Constitutional law. They further urged Congress to provide for judicial review of Constitutional questions in cases involving administrative and regulatory actions, and to provide for judicial review of enforcement and coercive actions of the government and administrative and regulatory actions.

The report is extensive and salutary. All Bar and judicial groups should be familiar with its findings and recommendations.

Within the past few months, a new ABA Special Committee on Judicial Independence has been appointed by ABA President Jerome Shestack. Furthermore, the Lawyers Conference of the ABA Judicial Division has published a "Model Program Outline for State and Local Bar Associations: Suggested Programs for the Appropriate Response to Criticism of Judges and Courts." Copies of all of the above documents should be available to the Bar and to the courts.

The ABA action has been noted, and reported upon in ABA Watch, a publication of The Federalist Society for Law & Public Policy Studies. The February 1998 issue of The Federalist Paper reported these ABA actions neutrally, although they were highly critical of other ABA initiatives, most particularly in policy-making activities, which were criticized for adopting "new controversial stances." Both in their publication ABA Watch and in their monthly periodical The Federalist Paper, the Federalist Society intensely focuses on the kinds of questions of judicial independence and constitutionalism that should be the concern of the entire Bar. Many ABA members are much less informed about what the ABA is doing than are Federalist Society members. Yet, the responsibilities for monitoring and participating in these crucial issues is a responsibility of all lawyers, not just those who have powerful interests, from differing viewpoints, as to the directions in which the law, the profession, and the judiciary, are moving.

This paper, with its attachments, has a clear purpose. It is informational. It seeks to identify major problems and directions in the American justice system. It offers bibliographical material and suggests strongly that we cannot understand our future until we are familiar with our past.

Most of all, it urges us to make a commitment to learn and then act, by a reasoned and committed program, to ensure that rule of law and our constitutional values will be safe and vibrant in the 21^st Century. To do this, judges and lawyers must ensure us and the public that judicial independence will be protected and defended by all of us when attacks occur. These are not the times for summer soldiers. They are times that challenge the legitimacy of the American experience, and the continued validity of the American Scriptures: the Declaration of Independence, our Constitutions ? Federal and State ? and our commitment to a rule of law of ancient lineage that is our most important heritage.