A judge must have the freedom to decide cases based on the facts and the law—not based on public opinion, the views of special interest groups or even a judge’s own personal beliefs. The right of every citizen to a fair trial is a cornerstone of our democracy. Without judicial independence and impartiality, this right would be compromised.
Even though judges run for office, they are different from other candidates. Voters must remember and respect that:
- Judges are not elected to represent the views of the people who vote for them. Under state rules, judicial candidates may not make promises regarding how they will rule on controversial issues, such as abortion or the death penalty. If they did, they might appear to be biased toward a particular viewpoint. Most candidates refuse to discuss their opinions on such issues. However, this has been modified by the 2002 U.S. Supreme Court’s ruling in Republican Party of Minnesota v. White, which means that judicial candidates may try to appeal to popular opinion to get elected.
- After the primary, judicial candidates in Ohio run on a nonpartisan ballot. Candidates typically do not identify with one party or the other, although special interests, including political parties, are increasingly portraying judicial candidates as partisan ideologues.
Download Judge Januzzi’s presentation on the history of judicial independence.
Enduring Judicial Principles
The American Bar Association created the Commission on the 21st Century Judiciary “to study, report and make recommendations to ensure fairness, impartiality and accountability in state judiciaries…. The hearings and colloquium focused on recent developments in the states that have politicized the judiciary and on demographic trends affecting how courts conduct their business.” The commission’s report, Justice in Jeopardy (June, 2003), emphasizes the importance of the rule of law, judicial independence and impartiality, judicial qualifications and the need to demographically reflect society, and the importance of public faith and confidence in the judiciary.
The commission identified eight “Enduring Principles” applicable to judges and our judicial system:
- Judges should uphold the law.
- Judges should be independent.
- Judges should be impartial.
- Judges should possess the appropriate temperament and character.
- Judges should possess the appropriate capabilities and credentials.
- Judges and the Judiciary should have the confidence of the public.
- The judicial system should be racially diverse and reflective of the society it serves.
- Judges should be constrained to perform their duties in a manner that justifies public faith and confidence in the courts.
Attacks on the Independence of the Judiciary
“Independent tribunals of justice…will be the impenetrable bulwark against every assumption of power in the legislature or executive.”– James Madison, Introduction of the Bill of Rights
Attacks on the judiciary are not new, nor are attempts to influence judicial decisions through intimidation.
In “Attacks on Judges: Why They Fail,” Barry Friedman of the American Judicature Society argues that attacks on the federal judiciary are always political. That is, attacks on the courts are motivated by dissatisfaction with particular court decisions—and those attacks have come from every political party and ideological bent.
The Constitution Project’s bipartisan Courts Initiative concludes that:
Americans are rightly proud of our system of government. Indeed, emerging democracies around the world use our Constitution as a model for a free society and a stable government. A strong and impartial judiciary is essential to America’s unique form of democracy. As Chief Justice William Rehnquist once noted, the independence of our judiciary is “one of the crown jewels of our system of government.” The Constitution Project’s Courts Initiative urges the public and politicians to safeguard this “crown jewel” by refraining from misleading and unnecessary attacks on judges, preserving meaningful access to the courts, and ensuring a thoughtful, collaborative judicial selection process. Otherwise, we will soon find that our courts can no longer protect the social and political institutions and rights that we hold most dear.
Attacks on Federal Courts
On the national level, attacks on federal courts have been happening since the beginning of this country’s history. Barry Friedman has noted the Jeffersonian attacks on the Federalist courts in the early days of the country (see Friedman’s article, “Attacks on Judges: Why They Fail”). As a result of these attacks, the Jeffersonians attempted to impeach Justice Samuel Chase of the U.S. Supreme Court.
In 1937, F.D. Roosevelt tried to pack the U.S. Supreme Court to ensure that he received the decisions he wanted.
In 2005, the trial judge in the Terry Schiavo case received numerous death threats, and Rep. Tom DeLay (R, TX) called for the impeachment of judges involved in the case.
Throughout our county’s history, many other U.S. Supreme Court decisions have enraged significant and vocal constituencies: Dred Scott (1857), Brown v. Board of Education (1954), Roe v. Wade (1973) and Bush v. Gore (2000).
Attacks on State Courts
Attacks on state courts are not new, either. What’s more, these attacks are quite widespread. Consider these examples chronicled by The Brennan Center for Justice and the American Bar Association’s report, Justice in Jeopardy:
- Conservative groups campaigned against an Iowa district judge who tacitly acknowledged the possibility of legal civil unions when he dissolved a lesbian couple’s civil union and resolved their property dispute.
- In South Dakota, supporters of J.A.I.L 4 Judges have gathered signatures for a constitutional amendment that would allow people to take judges to court for decisions with which they did not agree.
- Because legislatures control courts’ jurisdictions, budgets (including salaries) and typically judicial impeachment processes, legislators in Florida, Kansas, Maryland, Massachusetts, Missouri and New York (among others) have threatened, or actually retaliated against, courts by reducing their authority, slashing funds or moving towards impeachment after a court reached a decision legislators disliked.
Attacks on Ohio Judges
Within the past few years, three nationally infamous attacks have occurred in Ohio. Indeed, at a forum discussion about judicial impartiality, Georgetown Law Center professor Roy A. Schotland said of the 2002 Ohio Supreme Court elections, “You all are now the poster state, the rogue, the trouble in judicial elections…. Judicial races have gotten nastier, noisier and costlier.” (Jon Craig. “Forum Explores Court Reform.” Columbus Dispatch. March 7, 2003)
- After the Supreme Court of Ohio found the General Assembly’s public school financing process unconstitutional (DeRolph v. State), the legislature tried to give itself sole authority to define what a “thorough and efficient education” was and tried to remove the court’s jurisdiction over funding.
- In the 2000 election campaign for Ohio Supreme Court justice, incumbent Alice Robie Resnick, who business groups saw as pro-labor, was accused in a television ad of selling her vote for campaign contributions. The ad, which cost millions of dollars, was paid for by groups affiliated with the Chamber of Commerce. It showed a Lady Justice statue—piles of money tipping her scales—peeking out from underneath her blindfold. The tagline read “Alice Resnick. Is justice for sale in Ohio?”
- In the spring of 2006, a popular national TV commentator called for —and found loud support for—the impeachment of a Columbus, Ohio, judge for the sentence he had handed down in a case involving a sex offender. The Ohio attorney general, the governor and members of the legislature called for the judge’s impeachment until Chief Justice Moyer and others reminded them of the need for judicial independence and the rule of law, not popular opinion. See “Politicians drop bid to dump judge” in the Columbus Dispatch, March 18, 2006, by James Nash, Jim Siegel and Mark Niquette.