JUDICIAL INDEPENDENCE UNDER ATTACK
Remarks of Thomas W. Ross
To the
Mecklenburg County Bar Association - Law Day Luncheon
May 5, 2005

Thank you for the very kind and generous introduction!  I just wish my mother could have been here to hear it.  At least she would believe it.

Congratulations to Jan Thompson on receiving the Liberty Bell Award.  What a high honor to receive particularly when you have been selected by your colleagues. 

I want you to know that I am aware of why I was asked to speak to you today.  Brad called and said the Bar was looking for a really good speaker to come and give the luncheon address.  You can imagine how that terrific that made me feel - a really good speaker!  Then Brad went on to explain how your organization did not have the funds to pay any type of honorarium.  That is when I figured out he was looking for someone who is "good for nothing."  When I finish today you will have to decide if you think he found the right guy for the job. 

Those of you who have heard me speak know that I like to begin every speech with an old Scottish prayer that I learned from my Grandfather, who was, by the way, Treasurer of the Myers Park Presbyterian Church for nearly 40 years.  The prayer goes like this: 

Lord, make them like me and if they don't afflict them in some temporary way so that when they leave I will know who they are. 

When Brad called back in February and asked me to join you today I asked him what he wanted my topic to be.  He said I could talk about whatever I wanted, but that the ABA suggested topic was Juries. 

I told Brad I wanted to speak about Judicial Independence because I thought the judiciary was much more at risk than the right to trial by jury, plus it is something about which I care deeply.  Our discussion all occurred well before the recent flap over the Terry Schiavo case and the fight on the United States Senate over the so-called "Nuclear Option."  Brad was, I think, a little unsure of my choice of topic but relented, knowing he had found his good for nothing speaker. 

Soon thereafter the topic arrived on the national stage. 

I am proud to be a lawyer, and proud to have been a judge.  I believe that the law not only provides order to government, I believe that it is a tool for positive social change.  As lawyers, you and I have the opportunity to help people, to change people's lives, to help our nation live up to its promise of justice for all.  I believe that, among the three branches of government, the judicial branch is the one which must maintain greatest credibility, and which must provide the people with the greatest sense of security that they are truly equal under the law.  This has been part of our collective psyche since the very beginnings of this nation.  As George Washington wrote during his first term in office, "The administration of justice is the firmest pillar of government."

Friends, I am here today to tell you that I believe our democracy is at risk.  I am not trying to sound alarmist, and I do not like arguments of fear.  But the fact of the matter is that one of our branches of government is under attack, and the very separation of powers that has kept our democracy alive and vigorous is in jeopardy.  Judicial independence is not only being questioned, which I believe is healthy; it is being used as a whipping boy by public officials and opinion leaders who believe that the way to move their agenda forward is to chastise, threaten and bulldoze this country's system of justice.  I believe that our form of government well may be at greater risk now than it was during the attempt at court-packing, Watergate or the Clinton impeachment.  As lawyers, as people who believe in the system of justice, you and I have an obligation to protect judicial independence.

The truth is this is not a new topic either for me or the nation. 

On November 13, 2000, I was privileged to speak in the Great Hall of the United States Supreme Court in the presence of several of the Justices of the Court, including the Chief Justice as well as numerous Chief Justices of state Supreme Courts.  I began that speech by noting that there we were there six days after the election without a declared winner of the presidential election.  Even though no lawsuits had then been filed at that point in time, I went on to say that I thought the outcome of the election could well end up being decided by the courts.  I then indicated that I believed the courts still had sufficient credibility that, whatever the outcome, the decision would be accepted because the people of the United States still respect the courts and accept the rule of law as a fundamental part of our government and, indeed, our existence as a nation.  I am not sure I believe this as strongly now as I did just four years ago..

Why do I feel this way and why do I believe our judiciary and our democracy are so intertwined? 

Let me share some of my thoughts with you.

When the Founding Fathers wrote the Federalist Papers and the Constitution they clearly saw the need for an independent judiciary as a check and balance to the excesses of the Legislative and Executive Branches.   They recognized that the un-democratic institution they were creating as the third branch was critical because separation of powers and the rule of law are what ultimately preserve the very freedom they were inspired to protect. 

Nothing has changed.  Quoting the 1935 case of Humphrey's Executor v. United States, Judge Birch of the Eleventh Circuit in his opinion in the Terry Schaivo case said, "to preserve this dynamic, the 'Constitution mandates that each of the three general departments of government must remain entirely free from the control or coercive influence, direct or indirect, of either of the others.'" 

Remember those words, particularly the phrase "coercive influence" as I proceed.

In turn, the rule of law depends upon the respect the public has for the integrity with which our laws are interpreted.  The credibility of the courts is what allows the rule of law to continue and anarchy to be avoided.

For years before for the recent hubbub, there have been attacks pointed at the decisions of particular judges, including one in 1996 directed at my former colleague Jim Beatty, now a US District Court Judge for the Middle District of NC.  In that circumstance he was sitting by designation on the Fourth Circuit and voted with the majority to reverse a criminal conviction.  In his subsequent confirmation hearings after being nominated to sit on the Fourth Circuit, he was attacked by Senate Judiciary Chair, Orrin Hatch as an "activist, soft-on-crime judge."  There are numerous similar situations involving other judges.

Some believe this approach is part of a larger strategy to control the courts.  Those people often point to a handbook for members of one of our political parties written by a congressional political advisor in 1996 entitled Impeachment: Restraining an Overactive Judiciary, in which the author, David Barton, advocated impeachment of judges, not so much as an effective way of removing them from the bench, but as a tactic of intimidation. 

Attacks from national leaders can and, I believe will, have the effect of isolating and discrediting the judiciary if not brought under control.  We have all read or heard some of the most recent rhetoric.  But let me recall some of it for you because it has reached new heights and is of a much different tenor than in the past. The attacks are now no longer directed at particular judges based on a particular decision but are broadside assaults on the entire judiciary. 

House Majority Leader, Tom Delay, recently criticized what he called, "an arrogant, out-of-control, unaccountable judiciary."  He said after the Schaivo case, "the time will come for the men responsible for this to answer for their behavior."

In another instance, he stated, "We can impeach judges who get drunk, so why not impeach those who get drunk with power."
 
Jeff Lungren, a senior staff person for House Judiciary Chair James Sensenbrenner recently said at a public conference, "There does seem to be this misunderstanding out there that our system was created with a completely independent judiciary." 

Alan Keyes, a former presidential and senatorial candidate, recently commented, "Ronald Reagan said the Soviet Union was the focus of evil during the cold war.  I believe the judiciary is the focus of evil in our society today."

Michael Schwartz, Chief of Staff to US Senator Tom Coburn of Oklahoma, indicated in a public speech early last month, "I am in favor of mass impeachment if that's what it takes.  An easier way, he continued, would be to oust activist judges for bad behavior. It is tenure for life as long as you behave well.  I know that Justice Kennedy and Justice Souter and Justice Breyer and Justice Ginsburg and the rest of that crowd have not done (so)."

Representative Steve King of Iowa advocates another approach.  He recently said, "When their budget starts to dry up, we'll get their attention.  If we're going to preserve our Constitution, we must get them in line."

Please don't think this is a partisan issue.  Just last week, Sen. Hillary Clinton criticized several sitting Federal District Court Judges nominated for seats on the Circuit Court as "extreme judicial nominees."

Perhaps the most disturbing comment I have heard came from Edward Vieira, a lawyer and author of How to Dethrone the Imperial Judiciary, at a conference in April of this year sponsored by the Judeo-Christian Council for Constitutional Reform.  Mr. Vieira called for the removal of objectionable judges by whatever means necessary and said Stalin offered the best method, "He had a slogan and it worked very well for him whenever he ran into difficultly: No man, no problem."  Thankfully Mr. Vieira did not use the full Stalin quote which is, "Death solves all problems: no man, no problem."

These attacks are serious.  They have gone far beyond criticism of particular decisions and are now smearing the entire judiciary.  The term judge is rarely heard now unless it is preceded by an adjective, either "activist" or "extremist" depending on the political philosophy of the speaker. 

I am not sure I can even tell you what those terms mean.  Judge Birch, again in the Schaivo case, defined a judicial activist as, "one who decides the outcome of a controversy before him according to personal conviction, even one sincerely held, as opposed to the dictates of the law as constrained by legal precedent and, ultimately, the Constitution."   Jon Stewart's definition of a judicial activist in America the Book, is one "who sees the Constitution as a living document that can be adapted and re-interpreted to protect the needs of a changing society."  I think the most accurate definition of either a judicial activist or extremist may simply and best have been described by an appellate judge appointed by President Nixon who said, "if the court makes a decision someone likes, it is judicial statesmanship. If not, it is called judicial activism." And I would add judicial extremism.   

The point is, however, that the constant, degrading and sometimes personal attacks on judges and the judiciary by political and other leaders are slowly eroding the credibility of the judiciary and will ultimately, I fear, undermine the rule of law.  We cannot let the desire of a few to obtain their own desired short-term outcomes destroy the fabric of our constitutionally created institutions. 

This rhetoric is not the only danger to Judicial Independence.  Let me quickly mention a few more. 

Judicial Selection and campaign financing are huge problems in most states.  Most states still elect judges, including North Carolina.  Judges must not only be impartial and fair, they need to appear to be impartial and fair.  Running for election and the requisite raising of funds in many situations impacts the appearance of impartiality of a judge if not the actual impartiality.
Just last month I read a brief article about the judge in the first Vioxx wrongful death case having received a $60,000 campaign contribution last year from political action committees financed by the law firm that filed the case. 

Campaign contributions are a problem.  There is no way around it. A system that requires judges to raise money, most of which comes from those who have an interest in the cases that come before the judge, puts great pressure on the ability of judges to be impartial and, I believe, makes it nearly impossible for them to be seen by the public as always impartial.  These issues continue to be a problem at the trial level and need to be addressed.  Fortunately, North Carolina has enacted public financing for appellate elections and this change appears to have been quite successful last year.  It is, in my view, a positive step for good government in North Carolina.  
 
As someone who ran statewide in a partisan election and in a district-wide partisan election for Superior Court judge I can say I think we have made a very positive step in the right direction by enacting non-partisan elections for judges in this state.  I think this system is an improvement and is generally working well at the trial court level.  We have fewer contested elections and the amount of money invested in those elections is on the decline. 
 
I am not sure the non-partisan system is working as well at the appellate level, but I think it is still better than what we had before.  Over time, I hope candidates will not run on party labels, but instead will focus on their qualifications.  I commend Judge Howard Manning for taking this principled stand in the last election. 

I remain convinced that elections are not the best way to select and retain judges.  Judicial independence requires in my view that we appoint judges.  With that change, I think we should institute a system of review and retention that is based on the quality of a judge's work, his or her work ethic, demeanor, and promptness because it is important that there be a means of holding judges accountable.  

Lack of diversity on the bench also puts judicial independence at risk.
 
Why is this?  In my view, it is because of the way growing numbers of Americans see our justice system. Increasingly, as we all know, there are large segments of our society that no longer believe the courts are fair to everyone.  Increasingly, there is a belief by many of our citizens, both White and people of color, that justice is available only to Whites and to the wealthy. 

These citizens do not feel the poor get a fair shake and they believe the system discriminates against people based on inappropriate factors, including race and ethnicity.  These are concerns we don't like to hear about.  These are things that are uncomfortable to talk about, particularly for those of us that are white and well-off economically.   Some believe these are only problems of perception and have no basis in fact.   I believe they are real. 
Our state and nation are becoming increasingly diverse.  Our population looks much different than it did 10 years ago and it will be even more diverse in another ten years.  If we want our justice system to enjoy the confidence of this diverse population, the system must provide the real opportunity for all people to see themselves in the mirror when they look at the judiciary.  No longer can we afford to have only a small percentage of our judges made up of people of color and women.   The judiciary must reflect the populace it serves.  As President Franklin D. Roosevelt said, "Among American citizens there shall be no forgotten men (and I am sure he would include women) and no forgotten races." 

The final issue that I believe directly impacts judicial independence is funding for the courts.  I'm sure you would expect a former director of the Administrative Office of the Courts for the state to raise this issue.  My experience in Raleigh only strengthened the views I held previously.  If you don't provide the courts with adequate resources so they can do their job without undue delay, the public will lose confidence in the system.  We have seen this happen when business litigants hire a "private judge" so they can get their case disposed of without waiting several years.  Most people who come into the system don't have that option.  If these folks see a system that is way behind, if they hear law enforcement officers say we don't arrest folks for many misdemeanors because we know the courts are too busy to fool with them, and if these people can't get the service they need from the Clerk's office they lose confidence in the system, and when that happens the credibility so essential to maintaining the rule of law takes a hit.

This problem has been caused in part by budget problems, but it is exacerbated by legislators who often get angry with the courts over particular decisions and use this as an excuse for not properly funding the courts.  Whatever the cause, court funding in North Carolina is reaching crisis dimensions and the credibility of the courts is suffering as a result.

So, what can you and I do about this situation?

I have several suggestions for ways you can make a difference. 

You can support efforts to move to an appointment system for selecting appellate judges.  This is a change long overdue which, in my view, has more support and more likelihood of success this legislative session than at any time in recent history.   

You can continue to support the public financing system in North Carolina by checking off the $3 on your own tax returns and urging your clients to do the same.  It may be too late for most of you this year, but some, like me, had to get an extension and may still have the chance.  But, we can all remember to check off next year.

You can support and encourage people of color and women in the profession to seek positions on the bench.  It may mean some of us white guys have to be willing to step aside for the good of the system we love.  This may be a personal sacrifice, but it is, in my opinion, right and better for the common good if we are to build a diverse judiciary that reflects the society it serves.

You can support increases in court funding.   Speak out about how the under-funded system causes delays and backlogs that are hurting your clients, your community and your practice.

Work with the business community to help them understand the need for a strong, well-funded independent judiciary.  On a side note, thanks to those of you that attended and supported the event focused on judicial independence held here in Charlotte a couple of weeks ago with former Governor Hunt, sponsored by the Corporation for Economic Development.  The Z. Smith Reynolds Foundation supported that effort financially and believes part of the answer to protecting the judiciary is to work with business to better understand the need to support an independent judiciary. 

Finally, you must speak out!  As Martin Luther King said, "Our lives begin to end the day we become silent about things that matter."  If lawyers don't care enough about the rule of law and an independent judiciary to protect and defend it who will?  If you are not willing to write the national leaders engaged in judiciary bashing and intimidation to tell them to cease and desist, who will?  If you are not willing to write letters to the editors, speak to rotary clubs and community groups and go into the classrooms to explain these issues and advocate for our system, who will? 

I say to you with passion and with a deeply held belief that it is true, the independence of the judiciary and the rule of law are in real trouble in today's America.  It is your responsibility and mine to step up to the plate and offer a strong defense of our justice system and the need to protect its independence.  We must act proactively now or over time the judicial branch will wilt, our system of checks and balances will falter, and the great experiment we call democracy will fail. 

We can no longer depend on others.  This fight has gotten too serious and too important to sit out.  Join it!

Please, stand up for yourself, for your profession, for your judiciary and for your democracy.

Thank you for allowing me to speak with you today and please remember that Scottish prayer when you leave.

Thank you!

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