Legal Debate Raises Concerns of Eroding Jurist Independence

Although Americans frequently say “an independent judiciary” is one of the cornerstones of democracy, it became clear at a conference at USC Law School over the weekend that there are sharp differences of opinion among judges and legal scholars about what judicial independence is and whether it is endangered.

The conference was held amid rising concern in some quarters that there is a growing threat to judicial independence--however it is defined. There was general agreement that judges should be able to make decisions free from inappropriate outside influences, such as bribes. But beyond that, there was considerable divergence on the issue.

Most participants said that federal judges, because they have life tenure, are more independent than their state court counterparts who periodically have to face the electorate.

Nonetheless, an event in 1996 involving a federal judge served as a “lightening rod” for the current fear in some quarters that political forces are eroding the independence of judges, said Frances K. Zeman, a political scientist and former vice president of the American Judicature Society, a nonprofit organization devoted to improving the nation’s justice system.

The brouhaha was precipitated, Zeman said, when Harold Baer, a federal trial judge in New York, granted a defendant’s motion that he suppress evidence of drugs found in a car. President Clinton suggested that Baer consider resigning and then-U.S. Sen. Bob Dole, Clinton’s rival in the presidential race, said Baer ought to be impeached. Baer reconsidered the issue and reversed his ruling.

Concerns grew a few months later when Tennessee Supreme Court Justice Penny J. White was defeated in a bid for reelection. Opponents focused their attacks on a decision of the Tennessee high court that overturned a death penalty, even though White and other justices upheld the underlying murder conviction.

After the election, Tennessee Gov. Don Sundquist commented: “Should a judge look over his shoulder [when making decisions] about whether they’re going to be thrown out of office? I hope so.”

Sundquist’s statement defines the choice confronting Americans on these issues, said Anthony Lewis, author of two books on the U.S. Supreme Court and a New York Times columnist. “Is that what we want, judges who decide cases looking over their shoulder at politicians to keep from being pulled off the bench? That was the system in the Soviet Union. I prefer the American system--or what we have understood to be the system over the last 200 years . . . a country committed to the rule of law.”

Still, Lewis and several other speakers acknowledged that judges throughout the nation’s history have been attacked by both liberal and conservative politicians unhappy with decisions the jurists had rendered.

Although she did not challenge Lewis’ lament about Justice White, Stanford University law professor Pamela Karlan contended that some judges deserve to be turned out of office.

Karlan told the story of Jack Hampton, a Texas district judge, who “gave an unusually light--for him--sentence to a defendant convicted of killing two gay men.” The judge’s explanation: “These homosexuals, by running around on weekends picking up teenage boys, they’re asking for trouble. . . . I put prostitutes and gays at about the same level. And I’d be hard-put to give somebody life for killing a prostitute.” Three years later, Hampton was defeated in a retention election where this decision was a major issue.

On Saturday, former California Supreme Court Justice Cruz Reynoso, who was voted out of office in a heated 1986 election along with two of his colleagues, Rose Elizabeth Bird and Joseph Grodin, said he believed “you can’t have judicial independence without accountability.”

Nonetheless, he blamed former Gov. George Deukmejian for what he described as dramatically altering the judicial selection process in a negative fashion in California.

Reynoso said that when he was nominated to serve on the state appeals court in 1976, the process seemed apolitical.

He contended that the atmosphere changed dramatically six years later when he was nominated for the state Supreme Court. Atty. Gen. Deukmejian, then running for governor, made judges a central issue in his campaign.

As a member of the state’s Judicial Appointments Commission, he voted against Reynoso’s confirmation, citing his votes in criminal cases.

Reynoso, who was confirmed to the Supreme Court, recalled that he had declined to answer several questions from Deukmejian about how he might vote on certain kinds of cases, saying it would be a breach of judicial ethics to do so.

Four years later, Deukmejian successfully urged Reynoso’s defeat, citing the justice’s record of reversing 46 out of 47 death sentences he reviewed. Reynoso said that during the campaign he rejected the advice of friends that he affirm some death sentences in hopes that it would help secure his reelection.