Hirshon, Robert E.

English

University of Arkansas at Little Rock: UALR Bowen Law Repository

The Journal of Appellate Practice and Process Volume 4 Issue 2 Article 3 2002 A Few Thoughts on the Importance of an Independent Judiciary Robert E. Hirshon Follow this and additional works at: https://lawrepository.ualr.edu/appellatepracticeprocess  Part of the Judges Commons, Jurisprudence Commons, Law and Politics Commons, and the Rule of Law Commons Recommended Citation Robert E. Hirshon, A Few Thoughts on the Importance of an Independent Judiciary, 4 J. APP. PRAC. & PROCESS 331 (2002). Available at: https://lawrepository.ualr.edu/appellatepracticeprocess/vol4/iss2/3 This document is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has been accepted for inclusion in The Journal of Appellate Practice and Process by an authorized administrator of Bowen Law Repository: Scholarship & Archives. For more information, please contact mmserfass@ualr.edu. A FEW THOUGHTS ON THE IMPORTANCE OF ANINDEPENDENT JUDICIARYRobert E. Hirshon*Nothing is more important to our nation than anindependent judiciary, for judicial independence goes to the verycore of our democracy. In fact, if you want to measure the levelof freedom in any country, the first thing to be determined iswhether that nation's judges are truly independent, not just fromother branches of government, but from all influences of power,because ultimately a free society depends upon a judiciary that isloyal only to the law.An independent judiciary is not a given. It is like a delicateflower that requires constant nurturing. Recently, however, ourstate courts received a shock that may threaten their bloom. TheUnited States Supreme Court ruling in Republican Party v.White,' which declared the "announce clause" unconstitutional,is the culprit. This decision is likely to create a judiciary thatover time will become less independent and more beholden toindividuals. At a minimum, the Supreme Court's opinion willopen the door to the same cynical election process for statejudges that has infected the electoral processes for our two otherbranches of government.Why does this cynicism exist? Why is it at an all-timehigh? In part the answer is because Americans are convincedthat special interest groups have far too much power over thelegislative and executive branches. Voter apathy and the demandfor campaign finance reform are two manifestations of this newreality. To date, the judiciary has escaped the perception thatjudges are influenced in their decisionmaking by specialinterests. But how much campaign money will need to be spent,* Immediate past president, American Bar Association.1. __ U.S. -, 122 S. Ct. 2528 (2002).THE JOURNAL OF APPELLATE PRACTICE AND PROCESS Vol. 4, No. 2 (Fall 2002)THE JOURNAL OF APPELLATE PRACTICE AND PROCESShow many issue-advocacy ads will need to be aired, how muchnegative advertising by judicial candidates will need to becreated before the public changes its mind? As BenjaminCardozo himself once pointed out, " [t]he great tides andcurrents which engulf the rest of men do not turn aside in theircourse and pass the judges by." 2 And once the public changes itsperception of how justice is determined, will the judiciary everget its credibility back? Our profession's own recent historysuggests that it will not.On June 27, 1977, the United States Supreme Courtdecided Bates v. State Bar of Arizona.' Balancing society'sinterests in the free flow of commercial speech against the needto regulate the legal profession, the majority of a deeply dividedCourt rejected the Arizona Bar's argument that advertisingwould ultimately erode true professionalism and diminish thelegal profession's reputation in the community. The last twenty-five years have proved that majority wrong. And Chief JusticeBurger's premonition that the Court's decision would ultimatelyredound both against the profession and the general publicunfortunately has turned out to be accurate-too accurate.Quite simply, the majority in Bates failed to acknowledgehuman nature. Lawyers quickly determined that the SupremeCourt had created a crack in the heretofore solid armor ofprofessionalism. They learned that they could advertise just likeany other trade, and in the process they found out what MadisonAvenue already knew: Some approaches sell while others donot. Thus legal advertising became slicker in its packaging aslawyers exuberantly pushed the envelope beyond what manyAmericans considered good taste.The American Bar Association and many state and localbar associations did what they could to prevent misleadingadvertisements and to temper the more distasteful ads, but thedie was cast. Advertising helps the bottom line and the bottomline became what it was all about. After all, in Bates, theSupreme Court had labeled our profession a trade. And a trade isreally a business. "If you're injured, it must be somebody else'sfault," became more than just a slogan, it became our2. Benjamin N. Cardozo, The Nature of the Judicial Process 168 (Yale U. Press1921).3. 433 U.S. 350 (1977).AN INDEPENDENT JUDICIARYprofession's scarlet letter. Is there any wonder why the legalprofession is one of the least respected by the public?Fast forward exactly twenty-five years to June 27, 2002.The Supreme Court was again asked to engage in a delicatebalance involving freedom of speech when the White caserequired the justices to weigh the First Amendment against theprofessional regulation of judges. Another deeply dividedmajority determined that freedom of speech trumped judicialregulation and again, the Supreme Court opened Pandora's Box.And as with Pandora's Box, the escape of all the horribles hasyet to be cataloged.In White the Supreme Court unequivocally stated that the"announce clause," which prevents a candidate seeking judicialoffice from announcing his or her views on disputed legal orpolitical issues, is unconstitutional. As a result of this ruling, ourjudicial elections may soon look a lot more like our executiveand legislative races. Judicial candidates will now understandwhat they have to do to unseat judges who have made unpopularrulings: highlight those decisions and make it clear that theydisagree. It will begin subtly at first, but ultimately candidatesfor judicial office will run on abortion planks, tort-reformplanks, consumer planks, business planks. The list will expandand the money will flow.Protectively wrapped in the White ruling, judicialcandidates will challenge each other to be more forthcomingabout their positions on controversial legal issues under theguise of providing voters with the information that they need.Candidates will cite the Supreme Court as having alreadydiscredited the concept that restraint is appropriate. Special-interest donors will be able to precisely target their financialcontributions, and special-interest money will ultimately definethe results of judicial elections. Justice will be for sale and thestates will enter a brave new world. At least one member of theSupreme Court seems to think that the states brought this realityupon themselves by continuing to elect judges, so I guess thestates should expect to be punished for making that mistake. Butthe Supreme Court must be careful, for it too may be affected bythe new dynamic it has unleashed.The majority and concurring justices apparently believethat they will be immune to White's effects because theirTHE JOURNAL OF APPELLATE PRACTICE AND PROCESSopinions were limited to judicial campaigns. They may be hardpressed, however, to maintain this limitation. Indeed, theSupreme Court most surely will have to determine, if it hasn'talready, that the "announce clause" is unconstitutional not onlyin those states that elect their judges but also in those states thatappoint them. And if this is true, why should there be adistinction between state judges and federal judges? And if thereis no distinction, the Senate confirmation process will soondemand answers to questions that many federal judges,including those on the Supreme Court, have been able to deflectby pointing out that they should not make statements thatcommit or appear to commit them to particular positions thatcould have a bearing on cases, controversies, or issues that arelikely to come before them.Justice Ginsburg was right. The White majority's boldassertion that her dissenting opinion greatly exaggerated thedifference between judicial and legislative elections isabsolutely wrong. Everything in our proud history demonstratesthat the judiciary is different from the political branches ofgovernment. The founders knew that independent judges are anation's most precious commodity. We must continue to treatthem as such.

A Few Thoughts on the Importance of an Independent Judiciary

https://lawrepository.ualr.edu/cgi/viewcontent.cgi?article=1053&amp;context=appellatepracticeprocess

A Few Thoughts on the Importance of an Independent Judiciary

Abstract

Similar works

Full text

Available Versions

University of Arkansas at Little Rock: UALR Bowen Law Repository