TRANSCRIPT Protecting Our Judiciary: What Judges Do and Why it Matters

TRANSCRIPT Protecting Our Judiciary: What Judges Do and Why it Matters Slide 1 Thank you for joining us for Protecting Our Judiciary: What Judges Do and Why it Matters. Protecting fair, impartial courts and judicial independence is always essential, but now, more than ever. We hope this presentation will help you more fully understand the importance of judicial independence and what you can do to protect it. Slide 2 First, let s talk about why America needs fair, impartial, independent courts and judges. Courts protect the rights of everyone, including businesses, individuals and even people who do not have access to the courts. Courts do this by making sure both sides are heard whether it s a criminal case, a contract case, or a tort case and that the case is decided based on the evidence and the law, and not on anything else. Courts also protect the public by being the place where prosecutors can seek justice in criminal cases. Courts can also protect the public by holding companies responsible for defective products or by striking down a law or practice that is discriminatory. Courts hold lawmakers accountable by making sure laws that are passed are fair that they are clear enough to be understood, that they are applied to all people equally, and that they comply with the Constitution. Slide 3 But courts can only do this effectively if they are fair, impartial, and independent. Unjust attacks on judges make it much harder for them to do their job, make people think it s okay to pressure judges to decide cases a certain way, and make people worry judges are biased, even when they aren t. This undermines public confidence in the courts and risks the future of fair courts. Slide 4 So what exactly is an unjust attack? The kind of attacks that are unjust or unfair, and which require us to stand up in defense of judges include When the criticism is materially inaccurate (not just a minor inaccuracy that is unimportant) When the attack displays a lack of understanding of the role of the judge or the legal process; or When the attack is baseless criticism that is likely to have a significant negative impact on the public. It s important to acknowledge that not all criticism of judges or the courts is unfair. Many statements are fair criticism or express personal opinion. It is essential that people be free to criticize the courts (and other branches of government), so long as they don t misstate facts or mislead people. 1

Slide 5 Let s turn to some examples of unjust attacks on judges. These are fictional and do not depict any actual person or event. Let s say a federal judge issued an order temporarily preventing certain environmental regulations from being enforced. An elected executive officeholder goes on a late night talk show and says, That fake judge s decision was stupid and will be thrown out. Our rivers are being polluted right now and it s his fault! This displays a lack of understanding of the legal system. There are no fake judges in America. In addition, to call the decision stupid and proclaim that it will be thrown out shows a lack of respect for the judicial process and court orders. If even a prominent elected official doesn t respect a judge or the role of the judiciary, that sends a strong message that the American people shouldn t either. Some people might think, This is just a comment on a late night talk show; it s not that big of a deal. But lots of people tuned in to watch the elected official on television, so that statement reached a huge audience making it an even more serious threat to public trust and confidence in the judicial system. Or, let s consider a case where a political official is being sued for sexual harassment. He files a motion asking the judge to remove herself from the case, calling her a bitter woman. He speaks to the media and says it s an obvious conflict for a woman to hear a sexual harassment case, especially since it s been in the news that he s had extramarital affairs in the past and has made public statements calling his ex-wives offensive names. There s a long history of people trying to remove judges because of their race, religion, or other improper factors. Although this political official thinks it is an inherent conflict for a woman to hear the case because of her gender and how he has interacted with women in the past, this is not how judicial disqualification works. It is improper to demand recusal based on a judge s personal identity, and to suggest otherwise misleads the public. Here s one final example. A state Supreme Court justice is up for re-election. The year before she was part of a unanimous decision that reversed a death penalty sentence, because it was discovered that the prosecutor withheld important information from the jury. A special interest group runs a TV ad showing the justice smiling, right next to a headline about the murder the man committed. It plays ominous music. The voiceover says the justice is a friend of murderers, not a friend of justice. Ads like this mislead the public about the legal process and the role of courts. They also put pressure on judges whose job it is to make hard decisions that might later be mis-used against them. Slide 6 When you see unjust attacks on judges, you can help defend them. This is important, because judges often can t defend themselves. The rules of judicial ethics prevent judges from making statements about pending cases if doing so might interfere with a fair trial. And judges always have to be careful to maintain the appearance of impartiality for future cases. 2

When judges are criticized in ways that undermine the fairness and independence of the judiciary, they need the public, the media, and lawyers to stand up for them. When there are particularly serious attacks against judges, lawyers and bar associations often defend them by issuing statements. But they need help from the public and the media. A lot of unjust attacks take place on social media. First, you can help by not sharing stories that include unjust attacks. You can also help by sharing information that is accurate and explains why fair courts and judges matter. When unjust attacks happen in your community, you can help by speaking up in defense of fair judges and independent courts. You can do this by explaining why fair courts matter to your friends and colleagues, writing editorials or letters to the editor, and encouraging the source of the unjust attack to reconsider. To defend judges effectively, you want to be prepared. That means understanding what judicial independence is and why it s important. If you want to review this presentation later or look for additional resources, you can visit ambar.org/protectourjudiciary. Slide 7 Even though we re talking about defending judges, and as important as courts are to our democracy, just like anything else, they re not perfect. Some decisions might be wrong, but having a fair and impartial judiciary makes it possible for those cases to be reconsidered and overruled in the future. And a judge or court might rule the way you think is right on some cases and the way you think is wrong on others. If you always agree with a particular judge, the judge is probably not being fair and impartial. It s okay to disagree with a court decision or a law. Especially with controversial cases, there will always be lots of people who disagree with the decision, no matter what it is. Remember, controversial cases are the hardest ones for judges to decide and also the ones for which they are most likely to be attacked. Slide 8 We ve been talking about fair and impartial courts and judges and about judicial independence quite a bit. Fair and impartial is pretty easy to understand. But what exactly does the phrase judicial independence mean? Slide 9 First, it s important to talk about what it s not. Judicial independence is not the same thing as being an activist judge. Independent and activist might seem similar in some ways, but when it comes to judges and courts, they are two very different things. When people talk about activist judges they usually mean judges who make up their minds ahead of time, who have a political agenda, who decide cases based on public opinion, or who are influenced by improper outside factors. The idea of an activist judge is one who ignores the law or the Constitution to achieve a certain result. Judicial independence does not allow that. In fact, judicial independence requires that judges follow the law. 3

So, what is judicial independence? Slide 10 Judicial independence allows judges to make decisions based solely on the law and facts of each case. It allows judges not to be influenced by personal interests or outside pressure. And judicial independence allows judges to be accountable, without fearing retribution for making difficult or unpopular decisions that are required by the law. It preserves separation of powers as set forth in the Constitution. Slide 11 Let s look at a real case to help us understand separation of powers and the importance of judicial independence, even under pressure from the President of the United States. President Richard Nixon was re-elected in 1972, not long after a break-in at the Democratic National Committee s headquarters at the Watergate complex. During the investigation, it was discovered that President Nixon had tape-recorded many conversations that took place in his offices. The special prosecutor issued a subpoena for tapes and documents relating to certain meetings. Although President Nixon released edited transcripts of some of the tapes, he moved to quash the subpoena on the grounds of executive privilege. The Supreme Court unanimously held that the President did not have an absolute, unqualified privilege of immunity from judicial process. It also held that absent a claim that disclosure would jeopardize military or diplomatic secrets, the President s general interest in confidentiality did not outweigh the need for relevant evidence in a criminal case. Therefore, the President was ordered to deliver the subpoenaed tapes to the district court. President Nixon resigned shortly after the Court issued its decision. Slide 12 The case of United States v. Nixon makes it clear that no one is above the law. It also emphasizes the importance of separation of powers. Only by being free to carry out its duties independent of interference by the other branches could the Supreme Court order a sitting president to comply with a subpoena. Separation of powers is important for all three branches. Each branch needs to be able to do its job independently, subject to checks and balances such as judicial review, veto power, and legislative enactment of new laws. What exactly is judicial review? That s what we call it when courts review and interpret the laws that have been enacted, because it s unclear how they apply in a particular case. If a law conflicts with the Constitution, judges must give the Constitution priority. The Constitution is the supreme law of the land. Of course, every judge has a unique perspective, so fair judges will often reach different conclusions about how to interpret the law. Slide 13 Judicial independence includes the requirement that judges follow the law, even when they disagree with it or doing so is unpopular. Sometimes that means making a decision that has an outcome the judge doesn t like, such as protecting free speech that the judge finds offensive or reversing a criminal conviction of someone who is likely guilty because of serious prosecutorial misconduct. 4

Judicial independence makes it so judges are able to follow the law and decide cases without being affected by personal interests or threats or pressure from any source. Slide 14 Now let s turn to a case that shows us how the courts can be held accountable through the judicial process itself. After the Civil War, racial segregation and Jim Crow laws were prevalent. The question of whether these laws were constitutional under the Equal Protection Clause of the 14 th Amendment came before the United States Supreme Court after Homer Plessy was arrested for refusing to give up his seat on a train to a white man. In 1896, by an 8-1 decision, the Court upheld the discriminatory law, establishing the doctrine of separate but equal. In 1952, the United States Supreme Court heard Brown v. Board of Education, a lawsuit filed on behalf of Linda Brown, an African American girl, who was not allowed to attend a less-crowded white school a few blocks from her home, and was instead required to ride a bus across town to an African American school. Initially the Court could not reach a decision. Most of the justices wanted to overturn Plessy v. Ferguson, but they had different reasons for wanting to do so, and they were also concerned because of the anticipated backlash from states that were opposed to integration. However, the following year the Court heard the case again, and, in 1954, the Court unanimously held that in the field of public education the doctrine of separate but equal has no place. This is an example of a Court making a difficult, but independent decision that it felt was loyal to the Constitution even though they d gotten it wrong for many years. Slide 15 Judicial independence and the rule of law require accountability. But it s very important to remember that accountability is different for judges than it is for the other two branches of government. Legislative and executive officials run for office and promise to be accountable to the people who vote for them. When they accept money from lobbyists and special interest groups, those groups expect something in return. When they run for office, they make campaign promises about how they will act on controversial issues. If they do something unpopular, they have reason to be afraid of not being re-elected, because the people who supported them expected them to represent their interests. Judges, though, even ones who run for office, are not supposed to represent any special interest group or the will of the people who voted for them. When judges run for office, the only kind of campaign promises they should make are to be impartial and decide each case fairly. Judges have to uphold the Constitution and other applicable laws, even if it will anger the people who elected or appointed them. Slide 16 There are three main ways that the judicial branch is held accountable. A judge is accountable to the Code of Judicial Ethics. That means if a judge engages in illegal or unethical conduct, there 5

is an impartial disciplinary system that allows for a range of sanctions and removal of judges. Although rare, judges can be impeached for high crimes and misdemeanors. Judges are held accountable for their interpretation of applicable laws and the Constitution by being subject to appellate review. If a judge gets something wrong legally, a court of appeals can reverse the decision. And even Supreme Court decisions can be overturned. Judges are required to respect and follow precedent, but sometimes even longstanding case law is overturned when the Constitution requires it. For example, as we just discussed, separate but equal had been the law of the land for almost 60 years when it was struck down in Brown v. Board of Education. Accountability also requires a transparent system of justice that provides for public and media access to court proceedings and legal decisions. Courtrooms should only be closed and documents should only be sealed under very narrow circumstances. Slide 17 Judicial independence is threatened when outside influences impact how cases are decided or cause the public to distrust the legitimacy of judicial decisions. One type of outside influence is personal. Judges are regular people with diverse beliefs, experiences, and relationships. Some of those personal outside influences could impact how a case is decided, but most will not. The simple examples of when a judge should not hear a case include when someone in the judge s family is involved in the case. That could mean the judge s son is the defendant or someone in the judge s family will be impacted financially by the outcome of the case. Then, the judge should not hear it. Sometimes it depends on the case itself. A judge who is Catholic could hear a case where one of the parties is a priest. But the judge probably shouldn t hear the case if it s the priest from the judge s own parish. Simply sharing a religion with one of the parties would not mean the judge s impartiality could reasonably be questioned. But knowing one of the litigants might. Each state has a Code of Judicial Conduct that sets forth when a judge should disqualify himself or herself from hearing a case. Even if the judge believes he or she could be fair, if the judge s impartiality could reasonably be questioned, the judge should not hear the case, because the public needs to trust that the system is fair. Slide 18 In states where judges are elected, many people worry that campaign contributions may impact how judges decide cases. When campaign contributions or expenditures create a serious, objective risk of actual bias, the judge should definitely not hear the case. But recusal might still be required whether or not actual bias exists or can be proved, in order to guarantee due process. 6

This is an area where judges need to be especially careful about avoiding the appearance of bias. People need to be confident that justice is not for sale. Slide 19 We already touched on the proper ways that the legislative and executive branches influence the judicial branch by enacting laws, vetoing laws, enforcing laws, and providing court funding. But there are also things the legislative and executive branches do that threaten judicial independence and separation of powers. Some examples include when they threaten to or actually do cut funding based on judicial decisions, enacting laws they know to be unconstitutional, when they refuse to comply with a court order, or when they threaten to strip courts of jurisdiction, which is the ability to hear certain types of cases. Slide 20 Another example of how the legislative and executive branches sometimes try to improperly influence the judicial branch is by threatening to impeach judges who make decisions they don t like. Judges can be removed from the bench they can be impeached but only for particularly egregious conduct. The most common standard for impeachment is for treason, bribery or other high crimes and misdemeanors. So, a judge could be removed for committing murder or embezzling, but not for a speeding ticket. Unfortunately, it is becoming increasingly common for lawmakers to threaten impeachment when they dislike a court decision. Here s one recent example. A state legislature introduced a bill that expanded the reasons for impeachment to include such things as attempting to usurp the power of the legislative or executive branch of government. Supporters of the bill offered examples of the multiple bad decisions that could be remedied by the impeachment bill which is not the purpose of impeachment at all. Judicial independence must be protected so judges can make decisions fairly without fear of impeachment or being publicly attacked especially by the other co-equal branches of government. Slide 21 Judges make difficult decisions. But the rules of ethics prevent them from defending themselves when they are unjustly attacked. Justice Scalia is often quoted as having said, If you re going to be a good and faithful judge, you have to resign yourself to the fact that you re not always going to like the conclusions you reach. If you like them all the time, you re probably doing something wrong. We can dislike some of the conclusions judges reach, but it s up to all of us to defend the independence of the judiciary so we can all have access to fair, impartial courts. 7