An independent judiciary is one of the cornerstones of American democracy and the rule of law.  But increasing challenges to the authority of judges have many in the legal community concerned about maintaining the rightful balance of power

Brown, Geoff

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Digital Commons @ UM Law

Retraint? An independent judiciary is one of the cornerstones of American democracy and the rule of law. But increasing challenges to the authority of judges have many in the legal community concerned about maintaining the rightful balance of power. BY GEOFF BROWN ILLUSTRATION BY KEVIN MCSHERRY M ontgomery County Circuit Court Judge Kathleen Savage knew the verdict she was about to render would create controversy and pain. "This 3s one of the most difficult decisions I have had to make in a long time," she wrote of her July 17, 2007 opinion. She also wrote that she understood "the gravity of this case and the community"~ concern about offenses of this type." But her interpretation of the law was simple: A Liberian native, who had been held by Montgomery County police for suspected child abuse and rape for three years while awaiting a translator for his rare West African dialect, had been denied the right to a speedy trial. The charges would be dismissed. JD FALL 2008 Almost ~mmediately, her decision became national news. Special interest group and talk show hosts gave out h a  office's phone number and encouraged the public to call and voice their anger with her decision. On July 27, CNNi A n d m  Ceoper 3@ did a "Keeping Them Honest" segment on the case. The nigkt before, one of the guests on Fox News Channel's Tbe O'ReiUy Facfm had this to a y  about Judge Savage: "She should have had more common sense when she weighed a te& nicality against the outrageous rape of a 7-year old chiid. ... The entlre state of Maryland is infested with left-leaning ju* who are easy on criminals." Adding weight to those mmmenrs was the public role of the man who said them: Maryland Delegate Patrick MsDonough. He went on ro introduce a letter calling for Judge Savage's impeachment dunng the 2008 General Assembly scssion. T ~ I S  wasn't the first rime in recent yews that a Maryland legislatar had d e d  For the removal of a stare judge following a conuoversial decision. In March 2006, Donald Dwyer began an ultimately unsuccessful campaign to have Baltimore City Circl~lt Court Judge M. Brooke Murdack removed because of het ruling that a Maryland law banning same-sex marriage was discriminatory and unconsti- tutional. "Murdock must be removed from office for misbehav~or IU offlice, willful neglect of duty, and ~ncompetency," said Dwyer m his address to the General Assembly. Though both these attempts at impeachment faled, they illustrate an locreasing trend. Interviews w~th  more than a dozen School of Law graduates and adjunct faculty members currently sitting on the bench in city, stare and federal trial and appdlate courts reveal heightened con- cern about threats to judicial independence. In their view, increased polirical involvement in the judiciary? efforts to curb the power of judicial review, and reduced funding for the courts all remain the judicia- ry's capacity to act. Escalating partisanship and politidmtion of the courts are fueling en environment that places our system of justice, adminiimd by independent and impartial judges, at risk. adjunct fa member Paul W Gilmm. of~en engaged m a counter-major~wian "It is a threat to a fundamend tenet upon exercise. Some of t o w s  reveal pcedents which our counay is based." were once themost I i a d y  contested An Independent Judiciary The concept of American judicial mde- pcndencc was set forrh by Alexander HamiIton in Federalisr Paper 78. For Hamilton, the complete independenoe of the judiciary was "peculiarly essen&al" under a Constitution that would l i t  the federal legislature's authonry. His concep- tion of a "fair, impart~al, and independent judiciary" was two-fold. Judges would he independent from politld and popular ideologies. And the judiciary would have independence from the operation of the legislative and executive branches of government. Today, Ham~lton's reallzed vlslon is at the heart of our government. The public expects courts to he able to 1 render decisions mdependently, I based on the facts and law of the case at hand, and to act without restnction, improper influence, mducements, pres- sures, threats or mterference, direct or ~ndiren. Thls is significant because judges, especially when protecung human rights, are issues of their day. When B m  v. Board of Eclwrpn'~)n oudawed desegcegation in public schools, it ignited a firesform of cr~tidsm in much of the munuy and had to be enfozced in some states by National Guard uoops. "The view tbac judicial independence is something ro be reined in reflects a fundamental misunderstanding of the judicial funct~on," noted Professor of Law Sherrilyn Ifill In a 2007 forum for state appellate judges. "As Justice Kennedy so eloquently put 11, 'Judicial independence is not conferred so judges can do as they please. Judicial independence is conferred so judges can do as they must.'" But contemporary critics of the judicky often portray judges as politicians in black robes, overstepping thelr consti~tionall~ proscribed roles. In their view, legislative efforts to constraln the judiciary are a legitimate exerclse of the balance of powen. "When I filed the impeachment charge against Judge Murdock, it wasn't some- thing I did callously or casually. And it wasn't a question of not liking her decision. I believed that she was acting irresponsibly in regard to the oath of office, in specific relation to the case before her," says J D  FALL 2008 cc Calls for impeachment are very threatening and intimidating," says Judge Battaglia. "If a legislature can impeach because they don't like what an unbiased judge rules, our separation of powers is threatened." Delegate D y e r ,  a member of the House independence has been challenged. "All Judiciary Committee. my professional life, I've heard about "The Legislature is the only branch attacks on judges and impeachment," says that has the authority, duty and William Reynolds, the school's responsibility to hold the courts x Jacob A. France Professor of accountable. Prior to my action, Judicial Process. "One of my it had been over 160 years earliest memories is seeing an since the Maryland General 'Impeach Earl Warren' sign." Assembly had taken action to The difference today? "I think hold the courts accountable. I the attacks get more attention- think that's wrong." everything gets more attention," But even many who decry Reynolds says. activist judges caution against And with coordinated special inappropriate interference with interest group blitzes, media the judiciary. Supreme Court pundits with vast audiences, Justice Antonin Scalia, who and bloggers with axes to grind, strongly contends that there are the ability to apply personal and limits to judicial independence political pressure on a judge ( ("Judicial independence is not is multiplying with each new an unmitigated good when technological leap. unelected judges are deciding Despite the increase in volume social issues like abortion," he and intensity with which calls has opined), also sees Congress relling the for judicial impeachment are heard, legal Court how to do its job as inappropriate: scholars don't consider such efforts a legit- "Congress should keep its nose out of our imate way to attempt to change a judge's business," he said in response to proposed decision. They say the only acceptable, by undue pressure, a lidgant loses his due process rights to appear before an impartial judge. "When a judge worries about the personal consequences of her decision, she is reacting to an effort to coerce the out- come. That is not good," says Reynolds. Among the judges interviewed, those at the federal level said they were aware of individual attacks on judges, but were fortunate enough to not sustain those sorts of attacks. In the trenches of the circuit court level, however, judges are cognizant of the pillories they may have to endure, depending on what case they draw. "Nobody sits around hoping they get to rule on an issue like, say, gay marriage," says Judge Matricciani. "There's no way a judge is coming out of that unscathed." To Maryland Court of Appeals Judge and adjunct faculty member Lynne A. Battaglia '74, calls for impeachment are a threat to our entire system of government. "Calls for impeachment are very thrcatininq and inrimidatine." she s a i s .  - federal legisladon forbidding the Supreme Coutt to use foreign law in its decisions. Turning Up the Volume "There's always going to be someone unhappy with a ruling," explains adjunct faculty member Albett J. Matricciani Jr. '73, who was recendy elevated from the Baltimore City Circuit Court to the Maryland Court of Special Appeals. "But if you can gain a political advantage by attacking the judge ... people don't seem to be as hesitant to do that as in the past." Calls for impeachment have long been a means through which the judiciary's judiciary," says Professor of Law and Government Mark Graber, 'you have to understand that you're going to disagree with some decisions. It's been undetstood that we don't impeach judges for decisions that are reasonable." While much of the concern about increased calls for judicial impeachmenr focuses on the individual judges involved, what's most important to remember is that judicid independence is designed to protect citizens. If a judge is influenced JD FALL 2008 "If a legdamre can impeach because they don't hke wbat an unbiased judge rules, our separation of powers is mructurally and contexmally threatened" The Weakest Branch The judiciary has no funding power, no enforcement arm, very limited leeway to issue public statements, and no way to defend itself, save the public's acceptance of the rule of law. When political rhetoric adopts an unfortunate "us vs. them" attitude toward our justice system, the judiciary becomes an easy target. More troubling, and act ive ,  are the concurrent attempts by the legislature and executive to limit the judiciajs authoriry. In 2002, the Maryland Court of Appeals struck down a plan to redistrict the state's legislative districts on the grounds the plan was unconstitutional-and, therefore, the court made itself responsible for &awing up the new districts. The next year, in what many observers considered a clear case of political payback, the state Marcella Holland '83 legislature responded by cutting the court's budget. "It's increasingly dii~cult for courts to function in tight budget times," says the adminismtive judge for Baldmore City Circuit Court, Judge Marcella Holland '83. "And the funding issue can be tied to legislatures not Liking a pmicular decision, even though the decision might not have come from your particular court. The next budget cycle after that decision may be extremelv difficult for all the courts in : given area." While efforts to curtail the judiciary's independence abound, the issue burst into national prominence with the Terri Schiavo case in 2005. After 12 years of petitions and cross-petitions in state and federal courts, and three refusals by the Supreme Court to hear the case concerning the removal of Schiavo's feeding tube, Congress intervened in the court proceed- Ings. Rather than heed prior court orders and rulmgs, Congress sought to overturn them, not on their ments, but simply because they d~dn'q agree w~th  them. The courts' rulings were upheld but the House Majority Leader vowed to "look at an arrogant, out-of-control, unaccountable judiciary that thumbed their nose at Congress and the president." Pmfes'sor Ifdl points out that a proposal was circulated in the House Judiciary Commttee l a m  that year to create an inspector general for the federal judiciary that would have imposed punishment on judges for offwes that fell short of being impeachable offenses. Another example of other branches encroaching upon the courts' powers cane during the 1980s, when the federal government adopted mandatory sentencing guidelines for ertain crimes. These mandatory Riniums removed a crucial rower-sentencing-from the rench and put it in the hands of the xecutive branch. A former U.S. Attorney, U.S. Iistrict Court Judge Richard Bennett 73 has seen the Issue of mandatory nlnlmums from both sldes of the tench and is not a proponent. "I recognize that a charging lecislon 1s always made by the )rosecutor. However, the range of potent~al sentence is often made ,y the prosecutor and this is a --.-..ge to the Independence of the court when I am hamstrung in my sentencing decislon by mandatory ranges of sentences. I'm not sure that's a healthy process," he says. Without the power of elther the purse or the sword, the judiciary 1s left only with voluntary compl~ance to enforce lts rulings. Judges say that ~ncursions upon their autonomy are a threat not just to the courts, but to the separation of powers and our form of government. "We depend on the other branches: for fund~ng, and for enforcement of our decrees," says Judge Battagha. "And we depend on the Populace for our legitimacy. Unless people belleve that what we are doing is far and equitable and just, then we have no support for what we do." Protecting Independence The judges inte~iewed were uruform in their belief that mantaining public confidence in the judiciary is the single most important bulwark agamst threats to judcial independence. But the juduiary's ability to respond to attacks is limited "The courts don't have the ability to debate," says Judge Grimm. "They have a sort of gag order-there's no way to respond to attach.'" Judges are unable to comment on cases on which they have ruled because of pending and potential appeals, and judges themselves are often reluctant to issue their views &om any pulpit orher than the bench. "Judges don't want to have their picture in the news wery two minutes," J D  FALL 2008 says Judge Matricciani. "And they can't go out and give a press conference for a case that is on appeal." Still, "the judiciary has gotten better at finding ways to respond," Judge Holland adds. "I certainly have spoken out ahnut Judge Murdock and the treatment she received. And it's acceptable because I'm commenting on the administration of the law, not the particulars of a case." Even at the federal level, where attacks are less effective and prevalent, judges are aware of the need to inform the media and public of the reasoning behind their decisions. Judge Bennett recounts his course of action h e r  upholding a jury verdict against the controversial Westboto Baptist Church for invasion of privacy and intentional infliction of emotional distress after the actions of its members at the funeral of a deceased U.S. Marine. "I don't feel the least bit of intimidation," he says, "bur in some cases, I will follow my decision with a r written opinion. In this case, I wrote a 45-page opinion that went from A ro Z about my ruling in the case." To help give judges a voice in the court of puhlic opinion- and to educate the public which they se rvesome  courts have created their own advocacy agencies. In 1997, the Maryland judiciary formed what is today known as the Court Information Office, which works to provide information about how a decision was reached to the media and the puhlic. "Judges were feeling that there was inaccurate reporting in the media, and that there were increasingly I L outspoken critics," court informatiou u l u u ,  Sally Rankin says. "I would get requests from judges: 'Can you do something about these attacks!' "There was no one to speak on the judges' behalf, no institutional way to respond. And most judges were disinclined to take that on. Now, we have the judicial assistance committee, where judges can ask for help." Judges and courts have also begun to use one of the tools most often used to attack them-the Internet-to help educate the media and public in a more timely manner about rulings sure to stir up public debate. As the administrative judge for Baltimore City Circuit Court, Judge Marcella Holland is responsible for anticipating issues and situations where her courts and judges may receive scrutiny and p r w  coverage-and preparing for it. "If there is a high-profile civil or criminal case that is likely to proceed to an appellate court, any opinions or rulings in that case should be disseminated widely," says Judge Holland. "Get that information to the media A the pubbiii first, using e wehsite. If the media feels left Richard Ben behind, it's bad." But it's not as simple as dropping a 50-page ruling on .. . . .the web. "You can't just flood the site with information,' she continues. "Put up a two-page summary. And don't point blank say 'no comment.' Get information and pive it to the press in the - right language. "Handling the media is something the judiciary has not done well before," says Judge Holland. "We must have better press relations. I tell iudpes, 'You can't reach , - the public. The media can."' - The sacrosanct role of the iule of law in America should be enough to protect the judiciary from threats. And advances in the courts' ability to have their say in public have helped. Yet the dangers presented by these attacks are not to be taken lightly. "The rule of law is absolutely integral to any country with an advanced civhtion,"  says Judge Grimm. "Key to that is an independent judiciary that will a n  wid fear of retribution. If a judge gets a ruung wrong, that's what appellate courts arc for. But it's not appropriate to excoriate judges for individual rulings or to threaten impeachment for the exercise of reasonable discretion." Does the judiciary need a defender, especially if the threat to it comes from the other branches of government? Not all judges (partidularly those at the federal level) felt the need for a champion, hut all felt it was acceptable for groups like bar associations to issue statemenrs of supporr when a judge was being criticized for doing his or her job. At the circuit court level, judges felt that bar associations should stand with the judges against these attacks. "I think every local bar association has the obligation to defend the judiciary," says Judge Holland. "We need the bar association to step up, and to speak up, more often. They don't have to defend our every decision, but they should defend our right to make those decisions." Most judges feel that the other branches of government do-and havedefended the courts. "Oftentimes, we listen to the rhetoric of only a few people," says Judge Battaglia. "But when it comes to action, I believe the other branches will support us. We haw to coexist.'' 

Judicial Restraint?

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Judicial Restraint?

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