BurtLaw on Judicial Independence & Accountability

Judicial Independence & Accountability
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An essay on judicial independence and accountability. Justice Holmes cautioned us to "think things, not words." Thus, if a court says it is being "open," one should look beyond or under the word to "the thing itself." What is "the thing," if anything, a court is doing when it says it is being "open." In my opinion, more often than not, a court's "openness," examined with an open mind, is basically a "p.r." or public-relations kind of "openness." Ideally, a court should truly open itself to those to whom the court ultimately is accountable, not the lawyers but the people.

Oral arguments have always been "open" to the public. No ticket is required. Admission is free. But traditionally, relatively few people have attended. This was true in Minnesota when I started working at the state supreme court a number of years ago, when the court had chambers in the capitol. Occasionally a class of school kids showed up or some law students. If the

case appealed happened to arise out of a sensational murder or if the control of one of the houses of the legislature was involved, then the press showed up. Typically, though, just the lawyers and litigants showed up. The court, as it had done pretty much from its beginning, without advertising itself, quietly and competently and with integrity continued about its serious business, doing the often boring work of reading transcripts, listening to attorneys argue, discussing cases, writing opinions, overseeing the legal profession and the court system.

Eventually someone in Minnesota said television cameras should be allowed in the courtroom, and so the court agreed to allow television stations to record and/or transmit oral arguments, provided proper arrangements were made. But oral arguments typically aren't exciting and so the television news people lost interest very quickly. (Of course, if the case appealed happens to arise out of a sensational murder or if a football stadium is involved, then the press shows up to get a few "visuals" and some possible "sound clips" for the evening news report.)

What happens if you put on a free show, as the court always has done, and no one comes? Well, if it's yesterday and you're one of the old-style, traditional supreme court justices in Minnesota, someone who fills the office naturally, you're quite content just doing what a supreme court justice has always done, work hard deciding cases, leaving one's work, in Holmes' phrase, "unadvertised." Speeches? Well, a judge might give one or two a year. His high school alma mater might want him to give a commencement address, and he'd work moderately hard at it. Or it might be the judge's turn to speak to the new attorneys at one of the bi-annual swearing-in ceremonies.

But what if it's today and, hypothetically, you are a supreme court judge who used to be in politics or private practice with lots of partners and your chambers are no longer in the capitol, with its hustle and bustle, but in a new high security fortress-style judicial building designed to keep the public at bay? What if, well, no one is paying much attention to you and you start to feel isolated, lonely? It could be you're not suited to be an appellate judge, but, no, that couldn't be. It must be that there's something wrong with the way appellate judges have traditionally worked. Maybe you ought to get out more, mingle with the public. Those old guys...well, times were different. This is "the new millennium." Hey, maybe you ought to take the show on the road! This, of course, is a caricature, but caricatures often have value.

In any event, in fact the court in recent years increasingly has been "taking the show on the road" or, as some judges have put it, engaging in community "outreach."

(Or, as a Norwegian farmer might put it, "ed-you-cay-shun.") The court's first big move in the direction of this kind of "openness" or "outreach" or "ed-you-cay-shun" was to hold oral arguments on actual cases away from the court's two courtrooms, the old one on the third floor of the capitol and the new one on the third floor of the Minnesota Judicial Center, across the street from the capitol. The court started doing this by holding oral arguments, once per school per year, at the three law schools.

Then someone got the idea of also holding court outstate at least once a year. This typically resulted in considerable -- I believe always favorable -- media publicity for the court in the locale, and even in the region, in which court held forth. The local paper typically would show a picture of the judges "in action" or, even better, a celebrity-style picture of one of the judges surrounded by admiring school children attending the argument. One or more of the judges might be interviewed on television or radio.

Things went so well that once-a-year became twice-a-year. And since there's no idea that can't be pushed to its logical, even foolish extreme, and since even justices are human and therefore, like real celebrities, take well to the idea of uncritical attention and acceptance, something few elected officials get, why not come up with some variations on the court's outstate "traveling dog-and-pony show" (as a justice of the more traditional mold humorously referred to it after retiring)? Why shouldn't individual justices start visiting schools, and not just occasionally but often? Why shouldn't individual justices make public appearances at community events? Why shouldn't individual justices give more speeches? Why not send court employees to the law firms -- well, at least the big ones -- to talk to the firm's attorneys about court procedures? Hey, some of the justices could even go on a three-day "spring tour" to some part of the state? Indeed, believe it or not, that term, "spring tour," actually is the term the court's public relations person or "court information officer" gave, presumably with approval from someone higher up, to the three-day swing of multiple appearances in southwestern Minnesota late in the spring of 2000 by the chief justice and one other court colleague, both of whom happened to be "up" for election to six-year terms that fall. And then, of course, there are numerous bar meetings, functions and conventions to attend both in Minnesota and outside of Minnesota, because it's important that the court maintain good relations with "the bar."

And so it has come to pass that our justices self-admittedly are making "hundreds" of "public appearances" around the state each year.

What should one make of this development? It depends upon one's perspective; on one's view of the proper role of judges, particularly appellate justices; on one's assessment of things the judges are not doing but could and/or should be doing with their time; and so on.

Personally, I think that primary- and secondary-school teachers in Minnesota are quite capable, or should be, of teaching kids about our system of government. That is their job and there are lots of good resources available in their schools and communities to help them do their job. I think that given the high salaries of judges and their recurrent pleas that they are overburdened with work, that they need salary increases, that the legislature should fund more judgeships and more law clerks, etc. -- given all that, I think they should get back to basics and leave the teaching to the trained teachers.

Moreover, year after year, day after day, all spring and fall, one sees yellow busload after yellow busload from all around Minnesota blossom forth at the state capitol, filled with school kids, who spill out of the buses happily and fill the corridors of the capitol with their wonderful enthusiastic cacophony. When the court had its chambers at the capitol, the trained tour guides, as they still do, regularly brought kids into the old courtroom, told them about the court and the way the court works, and even let them sit behind the bench in the justices' chairs. All a judge had to do if he or she started feeling in need of being in the midst of "the people" was open the door of his chambers and take a stroll. Perhaps the current justices, entombed alive in the fortress-style judicial center, which was literally designed to keep the public at bay, need to open things up a bit there. If they aren't willing to do that, then perhaps they should simply take a stroll over to the capitol occasionally and introduce themselves to some of the groups of kids and give them a personal tour.

Secondly, I apologize but I can't help but question the purpose of all these public appearances. I think I know the purpose. I don't think they really are primarily about being "open" in any other than a "lite" or superficial kind of way. Frankly, I think the appearances are what most public appearances by real celebrities are -- "p.r.," pure and simple.

Not surprisingly, since fashionable ideas like this cross state lines as easily as both biological and computer viruses do, Minnesota is not the only state in which judges are doing this. These "outreach" programs have become the latest fad and are being promoted primarily as a good way for courts to build public confidence in and broad public support for the court system. They are so "trendy" that a prominent former special prosecutor (and former federal judge) not noted for being "trendy" jumped on the bandwagon with apparent enthusiasm, urging all judges to do the same in a speech in June of 2000 at the National Judicial College in Reno, Nevada. Specifically, he "urged judges to appear on television and use [emphasis supplied] all media to better inform people about the justice system." The need, as he expressed it, is to "explain" the judicial system in order to "dispel misunderstandings and overcome any misinformation or misimpression that may be there." In other words, or so I would argue he really was arguing, the people, poor ignorant souls, need to be set straight.

Actually, the programs are designed primarily to achieve the public support that is needed a) to keep judges, as judges put it so often these days, "independent" and b) to help judges, who don't control the "purse strings," get legislative appropriation of more money for their ever-increasing budgets. And who can quarrel with those goals without being "politically (or judicially) incorrect"? I can and do.

I am as firm a believer in "judicial independence" as the next person. But some people who have been waving the flag of judicial independence so vigorously of late turn out to have a pretty narrow idea of what judicial independence is. And they have forgotten that the public's interest in judicial independence is, and always should be, in creative tension with the equally-weighty public interest in authentic "judicial accountability." In short, the two, independence and accountability, are two parts of an antinomy.

What is the notion of judicial independence that some wavers of the flag of judicial independence seem to be pushing? I think it is the notion that, without too much exaggeration, could be stated in "rule" and "corollary" form basically as follows:

Rule: Judicial independence is that which would be compromised if political parties endorsed judicial candidates in judicial elections in states like Minnesota because that would inject partisan politics into what is supposed to be a nonpartisan election.

Corollary: Judicial independence is that which is not compromised if individual politicians or lawyers publicly endorse, contribute money and donate services to the campaign of a sitting judge facing opposition or to the judge's opponent because:

1) when politicians from two or three parties all support the sitting judge or the judge's opponent, that is appropriate "bipartisan" or "tripartisan" support, which necessarily equates with "nonpartisan" support, and

2) when lawyers support and contribute money and services to the sitting judge or the judge's opponent, they

a) aren't being partisan but are helping ordinary voters decide who to vote for, and

b) aren't compromising the independence of the person who is elected because that person, as judge, won't know which individual lawyers appearing in court actually made contributions, at least financial ones, to her or his campaign.

In applying equally to both the judge and the challenger, this unacknowledged "rule" and its "corollary" appear to meet a concept of fairness akin to that referred to by Anatole France when he wrote of: "The majestic egalitarianism of the law, which forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal bread." For some reason, the rule and its corollary also call to mind (mine, at least) the oft-quoted apparently-apochryphal statement by Marie Antoinette, the Queen of France in 1789, who, when told that her subjects didn't have bread to eat and were starving, reportedly (but not actually) said, "Let them eat cake."

Since the rule and its corollary apply equally, I suppose a judicial challenger in a three-party state like Minnesota is free to try find some three politicians who'll support him, preferably the kind whose very pores literally sweat only politics, three who'll swear on the nearest Bible they know what they're talking about, one from the Democrats, one from the Republicans, and one from the Reformers -- sort of the way lawyers find expert witnesses to support their claims -- and then tell everybody that he, too, has "tripartisan-nonpartisan" support, not the dreaded, improper "party" support.

What is real judicial independence? Is it just independence from political parties? Might it also include independence from politicians and at least some degree of independence and distance from lawyers and their interest groups? I suggest that judicial independence is not that which results from relying on endorsements from partisan politicians, however sincere their expressions of nonpartisanship on a particular occasion may appear to be or however "unified" they may be in their endorsements. Three wrongs don't make a right, and tripartisan support from partisan politicians is not nonpartisan independence from partisan politics. I also suggest that real judicial independence is not that which results from relying on endorsements and contributions of money and time from lawyers who regularly practice before the court on which one serves.

I think some of those who are prating so much about judicial independence these days, at least in Minnesota, really just don't like the state constitution's provision of direct election of judges. They like, instead, the de facto system that developed, whereby supreme court justices who decide to leave office retire before their terms expire, thereby allowing the governor to make vacancy-filling interim appointments of lawyers who almost always are from the governor's own party and more often than not are close political allies or aides. The unspoken quid pro quo is that each governor -- in order to benefit from this arrangement and ensure that future governors from his or her party, as well as his own appointees, will benefit from it -- must abide by it now and forevermore, supporting the appointees of other governors, past and future, if challenged. When some people prate about judicial independence, what they really are saying is that judges appointed (usually by virtue of political connections) pursuant to this arrangement should be independent from opposition come election time.

Why don't "they" like elections? Perhaps it's because voters are unpredictable, meaning they might elect a qualified person who has the audacity to challenge the lawyer who was appointed pursuant to the above-described unwritten arrangement. And that, of course, would be bad -- bad regardless of the qualifications of the challenger. What "they" do trust, what they do defend, with vigor and with dollars and with their expensive time, is the current arrangement, and they typically defend it with what I opine is a bogus argument that a vote for their candidate is a vote for "judicial independence."

If the supporters of the current "arrangement" really were concerned about "judicial independence," they wouldn't cheapen the idea by using it as they have been doing. Instead, they'd respect the intelligence not just of ordinary voters but also of their peers in the profession and use the term with a little more analytic precision, as does, e.g., Stanford Law School Professor Pamela S. Karlan in "Two Concepts of Judicial Independence", 72 S. California Law Review 535 (1999). In that essay, Karlan takes the lead of Isaiah Berlin in his lecture "Two Concepts of Liberty," and distinguishes judicial independence from and judicial indepedence to, just as she also distinguishes decisional independence from structural independence. Karlan points out that how one poses a question relating to judicial decisional independence suggests the answer: "Asking the question 'Should judges be free from the fear they will be tossed out of office for making a correct but unpopular decision?' suggests one answer. But asking the question 'Does judicial independence require the conscientious voter to disregard a judge's decisions?' suggests a different one." After discussing a couple examples, she says, "The point is this: without looking at the substance of a judge's ruling, even in a particular case, it is difficult to say that electoral retaliation is inherently bad. Moreover, once we move away from decisions in particular cases and toward the pronouncement of general legal rules, it is even less clear that individuals ought to be selected or retained without regard for their viewpoints....[I]t is not categorically true that we want judges to ignore popular opinion and rely on their own consciences, or that we want to protect judges who ignore politically settled interpretations and rely on their own views of the law. Sometimes we do and sometimes we don't."

In short, one should not talk about "judicial independence" loosely but with analytic precision. More importantly, one should talk as much about "judicial accountability," because, in our wonderful American system of checks and balances, the two are supposed to be in creative tension with each other.

When I talk about accountability, I don't mean more public appearances, more trips by judges away from chambers, more speeches. The great Justice Holmes gave only 45 or so speeches in his 50 years' of combined service on the benches in Massachusetts and then, starting at age 60, in Washington, D.C. They are collected in a wonderful slim little volume that I own. Many of them are just a few lines long. They are almost all memorable. Holmes spent most of his time at the court, doing the job the people expected him to do, writing his own opinions, memorable ones, most of them refreshingly short ones, that he wrote without delay immediately after the arguments were completed.

Not only should judges spend most of their time at the court working on the cases and writing their own opinions (if they're able to write their own opinions), they should make sure the people they hire to administer and manage our court system do a good job of it. One of the first things every final state appellate court should do is create a voluntary advisory committee on judicial administration, consisting of outsiders, preferably nonlawyers who have no relationship whatever with the administrators or the judges or the system. I'm talking about citizens with special expertise in administering large organizations, maybe some retired executives, men and women who are willing to provide a fresh perspective and a critical look at all aspects of state court administration, including budgeting. Such a committee would help the members of the court -- with solicited creative input from all other judges and all employees of the entire court system -- maintain better supervisory control of the administrative branch of the state judicial system. Our system of government is a brilliant system of interlocking checks and balances. I think the time has come for just the sort of check on administration that I have described.

Judicial accountability also requires that the chief justice and associate justices give strict scrutiny to the entire budget for the entire state court system. One word one rarely hears from most judges is "cost-cutting." Just because a state like Minnesota has enjoyed budget surpluses in recent years doesn't mean the court system should simply plan on asking for more and more money every session. And the court certainly shouldn't be asking for more if it hasn't done its level best to find savings. To facilitate this, each interested citizen ought to have full access via the internet to the detailed line-by-line, item-by-item, salary-by-salary budget rather than the kind of summary or "lite" court budget that is typically publicly available.

Needless to say, anyone who has worked in state government knows there are cuts that can be made without affecting the quality of government services one bit.

The supreme court in Minnesota used to do quite well without a resident court p.r. person, the "court information officer." I believe that position -- indeed, every position in the entire court system -- needs to be subject to cost-benefit analysis. If the court is to employ a person in such a position, the person should become more of a facilitator of the free flow of real information -- not "lite" information -- concerning the entire judicial system. I have compared the court's annual public statistical reports in Minnesota in recent years with those from the 1970's and early 1980's. The current reports are typically 10 or 15 pages long, are printed on glossier paper, contain lots of pictures and are visually appealing -- and contain little useful information. The older reports I have read are typically much longer, are printed on ordinary paper, make no attempt to be visually pleasing, and contain much more hard information useful to anyone who sincerely wants to form an independent opinion as to how the system is being administered.

One of the keys to my vision of real judicial accountability is more openness, and more detailed openness, with respect to judicial work activity and the judicial work product. Each individual judge's work calendars and timesheets and travel-and-expense reimbursement request forms are public documents readily obtainable by any citizen using the "sunshine" or openness-in-government law. These and similar documents can be made more easily accessible to ordinary citizens by placing them on the court's internet web site. Similarly, the court should put online for public scrutiny any statistical reports that the chief justice receives. Ultimately, I believe anyone who is interested ought to be able to type in any trial court or appellate court judge's name and obtain public information that will aid one in assessing that judge's work habits, productivity, expenditures of public money, etc. Moreover, after the fact one should be able to type in the name or number of any case and follow that case from start to completion, viewing, for example, at the supreme court level, the path and accompanying timeline as an opinion circulated through the supreme court, with the public given access to the dates the majority opinion and any separate opinions were put in circulation, the name and how much time each judge spent on the case before passing it on, etc.

Ultimately, the people whom courts exist to serve -- ordinary people, not lawyers -- will get the kind of court system they want and deserve, one that is both independent and accountable, only if they insist on having it. (BRH, revised, 08.13.2001)

Impeach the judge? Last year articles of impeachment were filed against Chief Justice David Brock of the New Hampshire Supreme Court, and a trial was held in that state's senate, which resulted in the judge's acquittal. Recently there was talk of possible impeachment of a new member of the NJ Supreme Court. The justice was the state's AG at the time the feds were investigating allegations of racial discrimination by state police in stopping minority motorists for what critics have called the "offense" of "DWB, Driving While Black." His critics alleged he withheld information from the feds and gave false sworn testimony during the confirmation process regarding his knowledge of the practice while he was AG. He denied wrongdoing. These cases show that the flip side of judicial independence is judicial accountability. Speaking hypothetically, the New Hampshire case suggests that a judge who verbally "recuses" in conference on a case because of a conflict of interest but then proceeds to make comments to his nonrecusing voting colleagues about the case might be subject to impeachment. Again speaking hypothetically, the New Jersey "case" perhaps suggests that in a state in which gubernatorial appointment of a judge is "confirmed" by the voters rather than by the state's senate, an incumbent's making false campaign statements about his prior professional experience, for example, or intentionally misrepresentating the challenger's prior experience to a reporter could be an impeachable offense. For an interesting history of impeachment of federal judges, written by Griffin B. Bell in 1998, click here.

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It is not an online newspaper and is not affiliated with or intended to be mistaken for any existing or previously-existing newspaper or journal. Rather, it is a so-called "blawg," a law-related personal "web log" or "blog," one with a subjective, idiosyncratic, and eccentric sociological and social-psychological slant that focuses not on the latest judicial decisions of supposed great importance but on a) the institution of judge in the United States and in other countries throughout the world, b) the judicial office and role, c) judicial personalities, d) the great common law tradition of judging as practiced here and throughout the world, e) judges as judges, f) judges as ordinary people with the usual mix of virtues and flaws, etc. We link to newspapers and other sources in order to alert the reader to ideas, articles, stories, speeches, law books, literary works and other things about "judges" that have interested us and that may interest the reader.

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