Guarantee the Independence of All Judges

Alexis DeTocqueville, the 19th century French observer of American culture, once said, “There is hardly a political question in the United States which does not sooner or later turn into a judicial one.” He had no idea.

The lasting impression of the 2000 presidential election shouldn’t be the stubborn chad or the fact that after almost 100 million votes, the election was decided by barely enough votes to fill a shoe box.

Rather, it should be that time and again, Americans looked to the courts for authoritative and final resolution of disputes involving the process, the technology or the actions of election officials. The Florida presidential vote illustrated to the public the need for a fair and impartial arbiter of the law and the Constitution.

The judiciary has a unique ability to perform that role if we have the wisdom to preserve it. But Florida is the wailing siren that the judicial system is under attack by partisan innuendo and interests. Time and again, the media felt compelled to identify judges according to who had appointed them, as if their expected ruling was therefore a foregone conclusion. And the candidates and their supporters spoke of judicial partisanship when decisions went against their position, and of judicial independence when the decision was favorable.

As former federal judges from very different backgrounds and persuasions, we nevertheless are in absolute agreement on this principle: Judges protect rights, not positions. They protect the law and the Constitution, not agendas. They may be elected as Republicans or Democrats (as some state judges are) or appointed by one (as some state and all federal judges are). They also have their own natural preferences and political views. But they are obliged, by oath, to “check this background at the door” and rule fairly, impartially and according to a good faith interpretation of the law and the Constitution.

That there is a perception that this is not the case is deeply troubling. It implies that justice is what the winning political party says it is. The fact is that on a number of occasions, Florida judges, supposedly associated with one political party, ruled in favor of the opposite party.

Now comes an effort in Florida by conservative groups to oust two Florida Supreme Court justices. Are we to expect a similar effort by Democrats to oust those members of the U.S. Supreme Court with whom they disagree? The danger of such actions is obvious. It continues the misperception in the public mind that courts are simply mouthpieces of the political parties.

All Americans ought to denounce such destructive actions wherever they occur. Florida is only the example at hand. Justice is under siege around the country. Consider: The Senate and the president battle over the selection of federal judges, and confirmations are held up for years. Judicial candidates raise large sums of money from special interests and, in order to curry votes, sometimes declare in advance how they will decide cases. Judges run as Democrats or Republicans or are declared (or declare themselves) to be pro-business, pro-union, pro-environment and so forth. Legislatures, driven more by politics than the law, find ways to punish judges or compel specific judicial rulings.

We need what James Madison termed “independent tribunals of justice.” We need elected officials who hold the separation of powers sacred. We need citizens who will denounce those special interests that would subvert justice for their own political or financial gain.

The primary outcome of this election should be reforms to preserve the impartiality of the judiciary. We can think of no greater act of statesmanship by the new president than to create a truly bipartisan and broad-based commission to recommend proposals for protecting the independence of our judiciary.

Democracy guarantees disagreement. Under this system of government, the will of the majority is ordained to prevail but it must prevail and the Constitution. Without an impartial judiciary we have no guarantee that that will be the case.