Ifill, Sherrilyn A.

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Matters of Judgment: Give Due Process its Due

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m Matters he contemporary discussion surrounding judicial Independence has generated strong feelings-and often vitriolic debammong legisla- tors, pundb, litigants and judges themrehw. In the provocative essays that follow, two faculw experts in Constitutional law bring new insights to an issue M crucial to the American Iudldai process. Shemilyn Ifill's states that too mu& lllumatiin by Barry Owvnard protecing judges. Her essay argues that the protection of litigants' due process rights is the true animating need for an impartial judiciary. Taking the long view, Mark Graber looks over the Supreme Court's vast 204year hktory and concludes that. more often than not, the branch b e l i d  to be a forum of principle rather than politics has demonstrated no more mmtitutional fllelity than elected officials. JD FALL 2008 # ID By Professor Sherrilyn lfill Its Due At i ts core, judicial independence is not about protecting judges. It's about protecting litigants and citizens. his is perhaps not a popular thing to say to judges, but too much of the debate and discus- sion about judicial independence has focused on judges. Case in point: In January 2007, the Chief Justice of the United Stares in his Year-End Report on the Federal Judiciary to Congress issued a compelling brief for preserving and promot- ing judicial independence. But the context of this discussion caught some on the raw. Chief Justice Roberts's speech on judicial independence focused entirely on the admittedly important issue of the need to increase the salaries of Article I11 judges. Without question, and as ably demon- strated by the Chief Justice, federal court judges are long overdue for pay raises (as are many state court judges). The failure to increase the pay of Article 111 judges may indeed ultimately compromise the qualiry of the bench. But here was an opportunity for the Chief Justice to talk about judicial independence with Congress-the body from which many of the most troubling challenges to judicial independence have arisen. From calls during the late 1990s for the impeachment of federal judges who issue unpopular decisions, to the 2005 legislation passed by Congress at midnight to remove one case involving the high-profile matter of ending life support for patient Terri Schiavo from state court jurisdiction to that of the federal court (legislation later described by one judge on the federal circuit court that refused to overturn the state court's decisions in the case as 'hverstepping constitutional boundaries"), Congress has often taken a leadership role in fostering the view that judges should be penalized for failing to render decisions that reflect the popular will. Nevertheless Chief Justice Roberts, in his address to Congress, chose to use the language of "judicial independence" to make his case about judicial pay raises, going so far as to describe the threat to judicial independence caused by insufficient pay as reaching the level of a "constitutional crisis." To my mind: this focus failed to properly identify and emphasize what is at stake when the independence of the judiciary is threatened. Judicial independence is at its core designed to protect litigants and citizens. It has its roots in separation of powers, yes, but it is also compelled by the Due Process Clause of the Fifth and Fourteenth Amendments to the Constitution. At its core, the right to due process guarantees litigants the right to appear before judges who are impartial, and who are free of influences that might result in bias or prejudgment of a case. So important is this due process right that the Supreme Court has held that wen the appearance of partiality or bias entides a litigant to seek recusal of a judge and require a judge to withdraw from a case. As the Supreme Court famously said nearly 80 years ago in O f i t t  v. United Stater, "justice must satisfy the appearance of justice." J D  FALL 2008  So important is due process that the Supreme Court has held that even the appearance of partiality or bias entitles a litigant to seek recusal of a judge. On state courts, there are troubling signs that unfettered speech by candidates in sme court judicial elections may be having a negative &eet on the pmteaion of due process rights of criminal dekndants. Several studies have shown rhat "elected mte supreme court justices are more likely to a r m  jury verdicts imposing the death penalry in the nvo years before the end of their terms than at other times." Yet another study showed that, in the 1980s, "state supreme courts with judga eletted by the legislature or in contesred voter elections affirmed death penalty sentences in more than 62 percent of the cases ... [while] state supreme mutts comprised of judges appointed for life terms a r m e d  death sentences in only 26.3 percent of the cases." A recent study of judges in one state suggests that judges' sentences become harsher "as re-election nears." If the conclusions of these studies are even parday. accurate, then the threat to judicial independence posed by the increasingly volatile rhetoric in contested and retention judicial elections is, at its core, a threat to due proms. The concern for due process is not limited to the criminal context. High profile cid cases, involnng pop& local defendants or plainu%, large employers in the local jurisdiction, or hot-button issues like child custody for gay parents, same-= marriage or granting judicial permission for minors to obtain abortions, may also be cases in which judges find themselves deciding cases with an eye toward an upcoming election campaign. Due process protects not only litigants. All citizens in a sociev governed by the rule of law must have confidence in the judiciary, in order for the judiciary to maintain its leg~timacy. The public might agree or disagree with a court's ruling, but citizens are more likely to comply with the rule of law when tbey believe that the judges are acting independently and legtimatdy in the11 determination of what the law is. Moreover, deusions in cases between individual litigants often have an impact on the lives of eve'yday citizens, whether it's a case seeking damages against a tobacco company, chaUenging the right of the city m impose speech resuinions on billboards, or the right of police ro use certain Forms of Force or interrogation. Thus, the public is deeply invested in ensuring that the due process rights of litigants to appear before judges who are impartial and who can act without fear of reprisal or redation, is protected. Pmfmor Shrmlyn I j iU bs m h o d y  mopmd as a. &c& m &c me& of nvl[ &its, wn'ng nghb. j..l....ldivcrsq andpduful &m~~z-&mg. She hnr apprared on NBC N&dy N m  a w d  as local nawonk new b r 6 h 1  rr a a&~t and ..p.t during Suprme C'co+n hmnngr. Pmfimr I f 1  a/# tentti dost thc h m r y  of -1 orolenn and conremponaw reonaliaflon &ra. Her . . - buob sbour tmro ,lnrl m~,~n:tlmrirn cnmmur;onrfor /mihinu. On rhr (:mrrhoure lawn:  Confronting - &e ~ e &  of Lyndung in the  215 Century, w a  69 Eedeun Book cn F c h q  200Z Tkir smy rradnptpdjvm a lolghmp"untnrz04 "Rrbuldiq a.dS'gt6m,gSuppo~j6r on IndLp&t J&F" thnt ,be &Immd & the P d  Ovrl  j w  I m t e ;  2007Mfb. mm qpti&h comrt,+r. 

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Matters of Judgment: Give Due Process its Due

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