Tag: Judiciary

Threats to judicial independence arise when our judiciary becomes intertwined with the political process.

Judicial independence was of the greatest importance to the Framers of our Constitution. One of the main grievances the colonists listed against King George in the Declaration of Independence involved the absence of judicial independence in colonial America. The Declaration of Independence charged the king with “obstruct[ing] the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers [and making] Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.” To safeguard against those abuses, the Framers of our Constitution insured that it provides federal judges with tenure during good behavior, which means they can be impeached for serious misconduct, but not for their judicial decisions. The Constitution also ensures that federal judges receive a salary that cannot be diminished during their term of service. The history of the formation of our judiciary emphasizes a point that is often forgotten in the debate over how we select judges. The Framers of the Constitution saw fit to render our federal judges independent of the political departments so they would not be beholden to the political branches in their interpretation of the law and the rights of our citizens. The Founders knew that there has to be a place free from political pressure and popular opinion, a place where being right is more important than being popular or powerful, where fairness triumphs over strength. In order for judges to dispense law without prejudice, judges need the assurance they will not be subject to political retaliation for their judicial acts and decisions. Read More …

On Monday, May 14, 1787, the first delegates assigned to the task of revising the American federal system of government began to assemble in Philadelphia. Over the course of the following weeks, delegates from across the colonies arrived and took their seats in assembly. An intense debate ensued over whether, and how, to scrap the Articles of Confederation and replace them with a new guiding document. The delegates were divided over multiple issues, such as how to fund the federal government, what legal weight to give to treaties, and, notably, how to handle the question of slavery. Yet, however varied their views on the intricate details, the delegates ultimately determined that they were bound by one common principle: America should be a place where the people govern. Read More …

In the spring of 2008, I was invited to participate in a panel discussion with Professor Charles Geyh on judicial selection. Professor Geyh had been a frequent and articulate critic of judicial elections, and I had been a skeptical supporter. But on the day of the discussion, we surprised each other. I had argued in favor of judicial elections based on principles of democracy—judges decide matters of policy based (at least in part) on the judges’ policy preferences, and therefore increasing public input into judicial selection makes those policy decisions more reflective of the public will. In my remarks that day, however, I acknowledged that different courts engaged in policy-making to different extents. As a result, I suggested that different methods of selection might be appropriate for different courts, so that the public would be able to exert some influence over the courts that make the most policy unconstrained by existing law, while other courts would be provided with greater independence. Read More …