Judicial Independence

John Adams once said the three most important differences between the nascent government of the United States of America and that of its former colonial master are: (1) the chief executive is not a monarch who attains to the office by heredity and then holds it for life, (2) the upper chamber of the legislative branch does not belong to the titled nobility, and (3) the judicial branch is separate from and independent of the other two branches – that is, the judiciary does not exist to do the bidding of the king.

Judicial independence has both an internal and external aspect. Internal independence is separating the judge’s personal preference for a desired outcome from his or her superseding duty to follow the evidence and the law. For example, a former justice of the Florida Supreme Court, known to be philosophically opposed to the death penalty, frequently voted to uphold death sentences because there was no way she could legitimately interpret the evidence or bend the law to achieve her preferred outcome. Internal judicial independence means that judges must sometimes wrestle with their conscience and come to the realization that they can’t always get what they want.

External judicial independence compels judges to do what they must do, that is, follow the evidence and the law, despite outside pressure to do what others want or expect them to do. The “others” could be public opinion, the media, lobbyists, influential friends, colleagues, donors (if the judge is elected), or the person who appointed them. External judicial independence might sometimes mean making unpopular and potentially career-ending decisions when the evidence and the law dictate that they must do so.

While internal judicial independence is a matter of judgment and conscience, external judicial independence is a matter of integrity and oftentimes personal courage. My first truly gut-wrenching observation of the notion that judicial independence is under existential threat came in the 1990s.

Imagine yourself as the judge in the following case:

The governor of your state has just appointed you to fill a temporary vacancy on the state’s supreme court. Before the appointment, you spent many years as both a trial court judge and judge of an intermediate appellate court. Only weeks on the new job there comes before you the appeal of a grisly rape/murder case in which the defendant was found guilty and sentenced to death. You and your four colleagues all agree that the guilty verdict sufficiently met all legal standards. However, your colleagues are evenly split on whether the sentencing phase of the trial met all due process requirements, specifically on the matter of certain mitigating evidence which the trial judge did not allow the jury to hear. You side with the two colleagues who ruled the judge was in error. The result is a 3 -2 decision which upheld the guilty verdict but remanded the case back to the trial court for a new sentencing hearing. The court did not reverse the sentence. The defendant remains in jeopardy of having the death penalty imposed upon him at a rehearing of the penalty phase.

A few months later, you are the only justice up for re-election that year. The voters must decide, by a yes or no vote, whether you stay on the court or go. You have no opponent on the ballot other than yourself, your record and your reputation. A conservative, pro-death penalty organization mounts a campaign to have you defeated at the polls. They paint you as a soft-on-crime, anti-death penalty justice, despite there being no proof of same. The organization attempts to sow fear among the public that you are going to throw open jailhouse doors and put dangerous criminals back on the street. The organization cares nothing about your eminent qualifications, spotless reputation, absence of ethics problems, or the fact that, earlier in your career as a lawyer, you argued a case before the United States Supreme Court and drew high praise from none other than Justice Antonin Scalia. All that matters to them is that your exercise of judicial independence must come at a high price. You lose the election. The career you hoped would last until retirement is gone because you properly exercised your internal and external judicial independence.

When we heard about this real-life case that happened in another state, my colleagues and I were shocked, angry, and a little frightened, knowing this could happen to any judge. We all knew that the selection and retention of judges involved politics, but a highly qualified judge getting thrown out of office because a single-issue, special interest group spent big money on a misinformation campaign to stoke unwarranted public fear was something new – and chilling. Today their focus is not only on crime, but also gun rights, abortion, and LGBTQ issues. Judges now may have to spend time away from the courthouse to raise huge amounts of money to pursue re-election or retention, placing additional pressure on their ability to properly adjudicate cases without fear or favor.

The federal judiciary gets around all that by having life tenure while serving during good behavior, which means they are virtually bullet proof.

The federal judiciary gets around all that by having life tenure while serving during good behavior, which means they are virtually bullet proof.

Our forefathers chose life tenure because they wanted them to be as independent as possible, but silly them, they believed judges would execute their office with virtue and integrity, which is the perfect segue into my next topic.

Judicial Ethics

Every judge knows at least two things. First, the office of judge, given its duties and responsibilities, is a sacred public trust. Second, even the appearance of impropriety violates that trust, shakes the public’s confidence in the courts and weakens the system. Adherence to high ethical standards is essential for judges to garner and maintain that public trust. Although a very important topic, the trouble is that judicial ethics is a boring subject, so I’ll be brief . . . Clarence Thomas. Actually, I have a little more to say.

All judges, magistrates and judicial officers in America are subject to the applicable Canons of Judicial Ethics adopted in their respective jurisdictions. That is, with the exception of just nine judges – and you know who they are. The late Justice Antonin Scalia once said, and I paraphrase, that the United States Supreme Court has no higher authority to regulate their ethical conduct other than themselves, and so they self-regulate, which we now know is practically no regulation at all. Justices are subject to impeachment, but in a sharply divided Congress impeachment is a toothless remedy. There are financial disclosure statutes and rules, but with perhaps one or two exceptions, they offer no real sanctions for justices who either ignore them or make omissions or misrepresentations on the forms. Moreover, there are no sanctions, for example, other than impeachment, for sitting on cases where the justice has a personal or financial conflict of interest, either a real one, or merely the appearance of one. In other words, as it stands now, United States Supreme Court justices are virtually immune from accountability for ethical misconduct. Their biggest threat is calls for them to resign, which they too are free to ignore.

It’s no secret that billionaires live by the doctrine of quid pro quo. They don’t pour millions of dollars into political PACs because they want the personal satisfaction of creating more jobs. They want a return on investment, as, for example, more industry deregulation in order to create more corporate profits and personal wealth. Billionaire Harlan Crow has provided huge sums of quid to Clarence Thomas, his mother, and his wife. What is the quo he is getting from Clarence Thomas? Companionship? A warm feeling in his heart for his largesse to a man raised in poverty? Hating the thought of a Supreme Court justice sleeping in an RV in a Walmart parking lot? Unless Mr. Crow is different from just about every other billionaire on the planet, he expects something from Thomas. He doesn’t have to ask for it. Once Mr. Crow inveigled Thomas into his web with fabulous vacations and gifts, there arose an implicit understanding that the enriched Supreme Court Justice will not oppose, or even disappoint, his wealthy sugar daddy when Justice Thomas gets back to the office.

It doesn’t matter if they claim not to explicitly discuss their common interest in cases coming before the court. I’ll even accept, for purposes of this discussion, that, in fact, they’ve never had such discussions. They don’t need to. They know the name of the game is quid pro quo, and Thomas has only one quo to offer in return for Crow’s quid. Going further, it’s likely that Crow and Thomas may already think so much alike that Crow no longer needs to offer Thomas a vacation valued at $500,00, which is a mere one half of one thousandth of a billion dollars, and yet almost twice Thomas’ annual salary, to keep Thomas in his web. However, Crow may still need Thomas to refuse to recuse himself in important cases, despite the obvious appearance of a conflict of interest, because he can’t afford to lose a majority in those important cases.

Since Justice Ruth Bader Ginsburg’s death and replacement with a sixth deeply conservative justice on the court, perhaps Crow now only invites him up to his Adirondacks resort a few times each year. Maybe the gifts are not as extravagant as before. It doesn’t matter because Thomas still owes Crow a lot of quo.

Forum Shopping

For as long as lawyers have been violating their oaths, Plaintiff lawyers and their clients have been forum shopping – finding the venue and judge most amicable to their case.

For as long as lawyers have been violating their oaths, Plaintiff lawyers and their clients have been forum shopping – finding the venue and judge most amicable to their case.

Except in small, mainly rural jurisdictions which may have only one judge, lawyers have been searching for ways to get their case before the judge of their choice, even to the point of bribing clerks who have the responsibility of assigning judges to cases through a blind, random process. Forum shopping is frowned upon as a means of unfairly tilting the playing field in their favor, so forum shopping is customarily a sub rosa endeavor.

Recently, however, a group known as the Alliance for Hippocratic Medicine practically shouted from the rooftops, “We’re going to engage in egregious forum shopping. We’re seeking to prohibit the prescription, sale and use of mifepristone throughout the entire United States, and we’ve preselected our judge, a man we already know is on our side, who will ignore science and 20 years of safe use in the marketplace, because he, like us, wants a nationwide ban on medical abortions, and we want to get to the Supreme Court with wins in the lower courts.”

There is no other case I know of where judicial independence, judicial ethics, and forum shopping has so obviously, and so egregiously, run amok. Other than those people who desperately want government to control women’s reproductive healthcare, how can anyone else say that this is the work of a neutral, unbiased, trustworthy judicial system? While the drivers on this railroad claim to be Christians, implying that what they are doing is God’s will, how can any reasonable person claim they are following the Bible’s repeated exhortations to do what is right, just and fair. I never recall Jesus saying, “It’s okay to play dirty while seeking the Kingdom of Heaven.”