Judicial Independence: A Two-Way Street
- Monday, July 28, 2008
Judicial Independence: A Two-Way Street
"Judicial independence" has become a trendy mantra. In a recent speech, state Supreme Court Chief Justice Chase Rogers invoked its value. Justice Peter Zarella took it a step further. He has new bar admittees thinking there is a constitutional provision that requires them to defend judges as a condition of the law license. I can't find that one in the state constitution.
Was Justice Zarella suggesting to new lawyers that when former Chief Justice Sullivan withheld publication of a ruling in order to benefit Justice Zarella's candidacy for chief justice, lawyers owed it to the bench to circle the wagons? Or was that episode an exception to Justice Zarella's rules for lawyer speech?
I wish the justices would offer a specific example of what they considered unfair criticism of the bench. Then we can have a legitimate discussion. I for one condemned the attack on Judge John R. Downey by the Law Tribune Advisory Board, not pursuant to a non-existent constitutional duty to defend a judge but under a constitution that guarantees me the right to speak my mind. Justice Zarella's charge to new lawyers improperly served to instill in them a sense of club loyalty and chill their exercise of a core constitutional right, which the justice conspicuously omitted in his speech. "Me Tarzan, you Jane, me criticized, you pounce" is no way to welcome new lawyers.
"Judicial independence" is a jellyfish concept, shapeless but with discriminating tentacles, an intentionally amorphous creation used as both sword and shield by those judges with a grandiose view of themselves as exempt from all scrutiny other than that which they themselves authorize.
Judicial independence, properly defined as freedom from improper legislative or executive encroachment on the judicial function, has become a talismanic phrase misused to stifle public debate about the character and competence of individual judges. Judges were not conscripted into service. They asked for (indeed lobbied and pulled strings for) the job. They should stop whining.
Judges could avoid much controversy by simply confining themselves to their jobs. Notably, any criticism of state judges in my column had nothing do with their actual rulings. I see a record of consistently rational and correct dispositions of appeals in our state Supreme Court. (Of course, that would change if the court legislates gay marriage off the bench and follows California jurists in starting a civil war between the judiciary and the populace.)
Judges invite much of what they complain about by veering into matters that are not the business of judges. Justice Richard Palmer's role in selecting a new State's Attorney, his public comments touting a race-based selection, his demand that JDs "diversify", and Judge Lubbie Harper Jr.'s menacing speech directed at lawyers who dared to criticize this, are perfect examples. Judge Lynda B. Munro spearheaded a program aimed at influencing private law firms' hiring and employment practices. Chief Justice Rogers, to my disappointment, has succored this conflation of judicial and non-judicial roles by approving quotas for Judicial Branch hiring and giving public speeches in which she pandered to special interest ethnic lawyer groups.
Would I trust these judges with a reverse discrimination case? I would move to recuse every one of them. I'll not willingly have judges decide the legality of an employment decision they approvingly called for in an extra-judicial speech.
It is critically important that litigants and the public have confidence in the neutrality of judges. You cannot take to the public stage and bemoan the verdict success rate of white males in discrimination cases or voice political solidarity with unsuccessful women who insist misogynists are to blame for their career failures, and expect people to trust and respect you as a jurist.
Judges are to decide cases; that's it. You want to be a social worker? A jobs broker? Back ABA/CBA social policy initiatives? Support a cause that might well come before your court? Get another job. If judges want "judicial independence" they must first be independent.•
Karen Lee Torre, a New Haven trial lawyer, litigates civil rights issues in the federal courts. Her e-mail address is thimbleislands@....