Jewish World Review Jan. 10, 2005 / 27 Teves 5765
Their own worst enemy
The independence of the judiciary is one of those great principles of constitutional government that everybody's for till judges get too independent. That is, till they deliver a decision we don't like. Then they become judicial activists and need to be reined in.
So long as there is a truly independent judiciary, it will be threatened by the political passions of the times and by those of us carried away by those passions, unaware that when we undermine the judiciary, we dismantle the institution that guards our own rights.
So it has been since John Marshall established judicial review as the logical, necessary and distinctive hallmark of the American system. And was immediately attacked for it.
And so it is now.
Which is why, when the Arkansas bar held a seminar the other day, one panel discussion was devoted to an always relevant subject: "Threats to an Independent Judiciary in Arkansas."
It had a familiar feel, this discussion. It brought to mind a staple of journalism conventions I've attended: the session on how to educate the public about the importance of freedom of the press. The panelists point with (justified) alarm and note every threat to freedom of the press except one:
How the press itself undermines its freedom by abusing it. And inviting contempt, then repressive laws.
Just so, judges undermine their own independence by failing to exercise judicial restraint. Or by undermining the restraint various states place on judges when they run for office.
Consider the U.S. Supreme Court's decision in Republican Party of Minnesota v. White. In the name of free speech, that ruling threatens to remove all limits on what judges can say when they campaign for election. Its effect would be to invite voters to decide legal issues at the polls by voting for judges whose politics agrees with theirs.
Judges are too close to being politicians as it is. Shortly after coming to Little Rock and the Arkansas Democrat-Gazette back in the spring of 1992, I received a long, detailed defense of a local judge's decision from the judge himself.
What surprised and shocked was that a judge would step down from the bench to bandy words with an Inky Wretch. By now it's happened so often that I'm only shocked.
(In this case, His Honor was thoughtful enough to send a copy of his letter to my publisher. Naturally. A judge of all people would understand the advantages of appealing to a higher court.)
It has been well said that silence in the face of criticism is the price of judicial independence. Judges who start explaining their decisions outside their courtrooms demean their courts and the law. For the judge is no longer standing above the political fray, or at least outside it. Instead he's thrown himself into the vortex of public controversy. And the law has been reduced to the usual political give-and-take.
The law may inevitably involve political questions, but the courts ought to settle those questions in the most dispassionate and disinterested way. Instead, some judges yield to the temptation to trade witticisms with their lessers.
I recall one member of the judiciary who, under the impression he had literary talent, responded in print and at length to editorial criticism of his legal reasoning. How embarrassing for him. It wasn't the criticism that threatened the judiciary's independence, but his responding to it as if being a judge were just another political office.
Just as an active military officer shouldn't be talking politics, and a newspaperman shouldn't be donating to a politician's campaign, a judge shouldn't demote himself to advocate.
And when Justice Scalia has to recuse himself from an important case because he's prejudged it in a speech, the judiciary is further weakened. And its function as the impartial arbiter of society's differences is further limited. His Honor needs to confine his well-honed thoughts to his legal opinions.
In the end, self-restraint can't be imposed on judges from without; it must come from within. Nor can it be codified. Judicial restraint is like the Do Right Rule. Or plain old common sense. Every violation of judicial impropriety cannot be defined beforehand, but, as Justice Potter Stewart said of obscenity, you know it when you see it. Or hear it.
And when the impartiality of the judiciary becomes suspect, its independence will soon enough be threatened, and the rule of law weakened.
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