Carrico, Harry L.

English

University of Richmond

University of Richmond Law ReviewVolume 38 | Issue 3 Article 53-2004A Call to Arms: The Need to Protect theIndependence of the JudiciaryHarry L. CarricoFollow this and additional works at: https://scholarship.richmond.edu/lawreviewPart of the Courts Commons, and the Judges CommonsThis Foreword is brought to you for free and open access by the Law School Journals at UR Scholarship Repository. It has been accepted for inclusionin University of Richmond Law Review by an authorized editor of UR Scholarship Repository. For more information, please contactscholarshiprepository@richmond.edu.Recommended CitationHarry L. Carrico, A Call to Arms: The Need to Protect the Independence of the Judiciary, 38 U. Rich. L. Rev. 575 (2004).Available at: https://scholarship.richmond.edu/lawreview/vol38/iss3/5FOREWORDA CALL TO ARMS: THE NEED TO PROTECTTHE INDEPENDENCE OF THE JUDICIARYThe Honorable Harry L. CarricoIt is a source of great personal pleasure for me to write thisforeword to the issue of the University of Richmond Law Reviewthat will publish the remarks made by a distinguished group ofspeakers at the symposium on judicial independence, held onMarch 21, 2003, at the Modlin Center. I am deeply grateful to theUniversity of Richmond School of Law, the Bar Association of theCity of Richmond, and the Allen family for their great kindness insponsoring the symposium in my honor.I also wish to express my sincere appreciation to Chief JusticeWilliam H. Rehnquist for his outstanding keynote address, and toChief Judge J. Harvie Wilkinson III, of the Fourth Circuit, for hisable introduction of the Chief Justice. My heart-felt thanks alsogo to Timothy L. Sullivan, President of the College of William andMary, who moderated a panel discussion on judicial independ-ence, and to the panel members, Kenneth W. Starr, former Solici-tor General of the United States, now partner with the law firmof Kirkland & Ellis, P.C., in Washington, D.C.; Penny J. White,former justice of the Supreme Court of Tennessee, now Professorof Law at the University of Tennessee College of Law; and H. Jef-ferson Powell, Professor of Law at Duke University School ofLaw.The speakers at the symposium dramatically demonstrated theextreme importance of the necessity for maintaining the inde-pendence of the judiciary in this country. They also emphasizedthe gravity of recent events tending to indicate a serious lessen-ing of respect for the concept of judicial independence. It is myhope that the publishing of the text of the symposium speeches575UNIVERSITY OF RICHMOND LAW REVIEWwill serve to alert the members of the legal profession-and thepublic in general-to the necessity of preserving the concept ofjudicial independence. I also hope the speeches will serve to warnof the dangers the concept might face as time goes by.There is a belief held by many that the method of judicial selec-tion has a direct impact upon the concept of judicial independ-ence. In most states, judges are chosen by some form of popularelection, involving about eighty percent of the state court judgeschosen to serve on the bench in this country.1 I strongly opposethis method because it throws candidates, whether for initial se-lection or for retention, into the rough and tumble of the politicalthicket, with all its unpleasant connotations.In Virginia, judges are elected by the General Assembly,2 withprovision made for the filling of vacancies occurring while the As-sembly is not in session.3 For example,whenever the term of office of a justice of the Supreme Court will ex-pire or the office will be vacated at a date certain between the ad-journment of the General Assembly and the commencement of thenext session ... a successor may be elected at any time during a ses-sion preceding the date of such vacancy.4Otherwise, the vacancy is filled by appointment of the Governor,subject to confirmation by the General Assembly at its next ses-sion.'Much of the present concern about the independence of the ju-diciary stems from the effect a judge's decision in a particularcase might have upon his or her chances of retention in office.This concern is expressed in states that select judges by popularvote as well as those using some other method. Since I am more1. See State Judicial Independence: A Review of Recent Issues and Arguments, A.B.A.COMM'N ON SEPARATION OF POWERS AND JUDICIAL INDEPENDENCE, at http://www.abanet.org/govaffairsjudiciary/r5.html (last visited Jan. 23, 2004).2. See VA. CONST. art. VI, § 7 (regarding election of Supreme Court justices); VA.CODE ANN. § 17.1-400 (Repl. Vol. 2003) (regarding election of Court of Appeals judges); VA.CODE ANN. § 17.1-509, -512 (Repl. Vol. 2003) (regarding election of circuit court judges).3. VA. CONST. art. VI, § 7 (regarding election of Supreme Court justices); VA. CODEANN. § 17.1-303 (Repl. Vol. 2003) (Supreme Court provision); id. § 17.1-400 (Repl. Vol.2003) (Court of Appeals provision); id. § 17.1-509, -512 (Repl. Vol. 2003) (circuit court pro-vision).4. VA. CODE ANN. § 17.1-303 (Repl. Vol. 2003).5. VA. CONST. art. VI, § 7 (Supreme Court provision); VA. CODE ANN. § 17.1-400(Repl. Vol. 2003) (Court of Appeals provision); VA. CODE ANN. § 17.1-509 (Repl. Vol. 2003)(circuit court provision).[Vol. 38:575FOREWORDknowledgeable about Virginia's selection method than any other,I will speak only of my personal experience under the Virginiamethod-i.e., selection by the legislature.I have been on the Supreme Court of Virginia for a long time. Iwas appointed by Governor J. Lindsay Almond, Jr., in 1961, myappointment was confirmed by the General Assembly at its nextsession, and I have been reelected by the General Assembly threetimes over the intervening years, the last time in 1991. Never,when I was up for reelection, did I feel any threat to my inde-pendence, nor did I fear that I might not be retained because of adecision I had made with which some member or group of mem-bers of the General Assembly might have disagreed. In this fa-vorable kind of atmosphere, the concept of judicial independenceremained strong and healthy.However, before my last term ended, there was good reason tobelieve that the atmosphere had changed. Consequently, I do notknow what my situation would have been had I not reached themandatory retirement age, had asked for reelection, and, in themeantime, had made an unpopular decision.Not having been placed in such a situation, I cannot imagine,much less know, how distracting it would be if each time a judgeis called upon to decide a case he or she is faced with the threatthat his or her retention would depend upon how a particularcase is decided. Nor can I imagine anything that would be moredestructive of the concept of judicial independence.Long ago, Chief Justice John Marshall posed this question: "Isit not, to the last degree important, that [a judge] should be ren-dered perfectly and completely independent, with nothing to con-troul or influence him but God and his conscience?"6 Our modern-day answer should be a resounding 'Yes!" We must make certainthat no judge is ever influenced in deciding a case by the threat ofbeing turned out of office because the decision, while made ingood faith, differs from the way those responsible for the judge'sretention might think it should have been decided. The views ex-pressed in the symposium on judicial independence last Marchwill go a long way toward achieving that certainty.6. 2 PROCEEDINGS AND DEBATES OF THE VIRGINIA STATE CONVENTION OF 1829-1830,at 616 (De Capo Press 1971) (1830).20041

A Call to Arms: The Need to Protect the Independence of the Judiciary

https://scholarship.richmond.edu/cgi/viewcontent.cgi?article=2551&amp;context=lawreview

A Call to Arms: The Need to Protect the Independence of the Judiciary

Abstract

Similar works

Full text

Available Versions

University of Richmond