Protecting the Courts: Unfair attacks on judges undermine judicial independence, the rule of law
As lawyers, we can never say it enough: An independent judiciary is an essential element of American government and democratic systems around the world. The judicial branch is and must always be a coequal branch with the executive and legislative branches. Judicial decision-making must never be influenced, or even appear to be swayed, by external political pressures or popular opinion.
Simply for carrying out their duty to follow the Constitution and the law, judges are vulnerable to unfounded and extraordinary attacks. The personal information of one federal judge’s family was shared online after his ruling in a high-profile case led to personal criticism that mocked his professional credentials. The judge received more than 42,000 calls, letters and emails, including 1,100 that federal marshals determined were meaningful threats.
Nobody, especially dedicated public servants, should live in fear for upholding our Constitution and laws. Everyone has the right to disagree with a court’s decision. But those who openly mock a judge’s legitimacy or threaten retaliation due to an unfavorable ruling not only contribute to public mistrust of the judiciary; they undermine the very foundation of our democracy.
Bar associations have a special responsibility to ensure that the public understands the judiciary’s role and holds the judiciary accountable to the highest standards of fairness and impartiality. To help mobilize lawyers, the ABA recently updated its manual Rapid Response to Unfair and Unjust Criticism of Judges. The manual includes a section on the extraordinary rise in social media use and dissemination of news through online channels, which has increased the rapid spread of unjust criticism and misleading statements.
Each of us as lawyers needs to lead in combating this challenge to what makes our democracy work. Each of us has a role to play in protecting and promoting the independence of the judiciary. We cannot leave the job to anyone else.
To promote an independent, fair, competent and ethical judiciary, we also must focus on how judges are chosen. For more than 60 years, the ABA has performed the unique public service of thoroughly evaluating federal judicial nominees solely based on their professional qualifications—a service with a bipartisan reputation as a “gold standard.”
When fueled by party politics, popularity, and significant campaign fundraising and spending, contested judicial elections and retention elections for state and municipal court judges can undermine the public’s faith in impartial justice. As noted in the ABA’s State Judicial Selection Standards, the evaluation of judicial candidates by a neutral, nonpartisan, credible and deliberative body can instill confidence in judiciaries whether they are elected or appointed.
The independence of other judges equally deserves our support. For example, the ABA has long advocated for the creation of an independent immigration court system outside the control of the Department of Justice. Such a system would protect and advance America’s core values of fairness and equality while ensuring the timely adjudication of cases.
Other countries look to the ABA for guidance in fostering fair and impartial courts. Through the ABA Rule of Law Initiative and the ABA Center for Human Rights, we have monitored and shined a light on attacks on the independence of courts around the world. American lawyers who care about the value of judicial independence in our country must stand up to attacks on the judiciary both at home and in other countries.
Former U.S. Supreme Court Justice Sandra Day O’Connor has been a leading champion for fair and impartial courts. “Judicial independence does not just happen all by itself,” she observed. “It is tremendously hard to create, and easier than most people imagine to destroy.”
No democracy can survive without an independent judiciary. And an independent judiciary relies on individual lawyers and bar associations to help protect judges and safeguard their ability to provide justice for all. Please do your part. Our democracy depends on you.