Tuesday, July 15, 2008
Witnesses Tell Panel Politics Threatens Judges’ Independence
By a MetNews Staff Writer
SACRAMENTO—A national wave of political threats to judges’ independence threatens the integrity of the judicial process, although it has not hit California yet, a number of witnesses told a state commission yesterday.
The witnesses were invited by the Steering Committee of the Statewide Commission for Impartial Courts, which was established by Chief Justice Ronald M. George last September, and spoke at a public meeting in the auditorium of the Secretary of State Building.
The commission, which works through the steering committee and four separate task forces, is chaired by Supreme Court Justice Ming W. Chin and is expected to deliver an interim report to the Judicial Council next month.
“Courts throughout the country are facing unfair political attacks that threaten to weaken our democracy and jeopardize every American’s right to equal access to justice,” Chin said in opening remarks.
Chin explained that the purpose of the commission is to study the importance of preserving the right to fair and impartial courts that make decisions free of outside influences. He stressed the commission’s belief in court accountability to codes of conduct, the law, and the Constitution instead of politicians and outside interests.
Among the speakers was Chief Justice Thomas J. Moyer of Ohio. Moyer, whose state elects judges in contested, partisan elections, is a board member of the Justice at Stake campaign, a national movement to support fair and impartial courts through reform of the election process.
Drawing on the experience of his and other states, particularly in the Midwest, Moyer criticized heavy campaign spending, misleading third-party political advertising, and aggressive questionnaires as problem areas affecting judicial impartiality.
Voter perceptions about financing hotly contested judicial races were a particular concern, the Ohio jurist said.
“What troubles voters is the growing need for contributions to judicial campaigns,” he said. “Nearly every survey concludes three out of four people believe the need to raise campaign contributions affects the decisions of judges.”
He recommended educating the public about the purpose of the court as being the most important step to maintaining judicial impartiality. Other steps should include reducing the role of fund raising in judicial campaigns, clarity of judicial accountability, and steps to ensure the integrity of the judicial selection process, he urged.
The witnesses included two former governors, Democrat Gray Davis and Republican Pete Wilson, who cited similar concerns.
Davis criticized movements in other states to limit judicial terms and strip judges of their immunity from civil liability for their decisions, and said judicial pay needs to more closely reflect the realities of the private sector. He also contrasted the lack of information available to voters with the extensive data that the governor reviews when making appointments.
“All judges should be subjected to the same rigorous background checks, whether they are appointed or elected,” Davis said. Wilson spoke about keeping judges focused on the judicial process rather than the societal or political impact of judicial decisions.
Wilson echoed Moyer’s criticism of political position questionnaires sent to judges during campaigns. “Candidates should not announce their views on upcoming judicial matters,” Wilson said, acknowledging that a fine line exists between a judge’s individual right to freedom of expression and their obligations as a jurist.
Manny Medrano, anchor for KTLA news in Los Angeles and a former federal prosecutor, said attacks on judicial impartiality are coming from within the court system - by way of dissatisfied litigants and attorneys – as well as through the political activities of special interest groups.
Medrano suggested that demystifying the workings of the legal system would help ensure judicial impartiality.
“Our legal system works because people have faith and trust in the system,” he explained. “Giving people a better grasp of the underlying works helps reinforce that trust.”
In addition to advocating the use of cameras in the courts at all levels, Medrano suggested that judges perform outreach activities similar to the pro-bono activities used by private law firms.
“Our greatest weapon is a public that knows and understands how the legal system works,” he said.
Senate President Pro Tem Don Perata, D-Oakland, drew on his experiences as a civics teacher in his comments. In addition to stressing the need for public education, Perata suggested improving the compensation of judges in order to attract the best and brightest to the judiciary and to encourage diversity.
“Judges’ salaries have not kept pace with what we expect them to do,” said Senator Perata. “It is becoming difficult to attract diverse candidates.”
Professor Laurie L. Levenson of t Loyola Law School said public confidence in the legal system plummets when a judge’s impartiality is challenged based on the belief that a judge is beholden to monetary or political forces.
Levenson focused on anti-court rhetoric, legislative attacks, reductions in court spending, and the process of “litmus-testing” of judges. She cited attacks by the press, physical threats, and the costs associated with retaining judicial office during elections.
“I commend California for taking the important step of recognizing and addressing these concerns,” she remarked.
State Bar President Jeffrey Bleich opined that judicial impartiality rests in faith in the system. “Our faith in the integrity of our courts must be a living, working reality,” he said.
Bleich suggested increasing public awareness of the judicial process and judicial qualifications was an important step to keeping the judiciary impartial.
Plumas Superior Court Judge Ira R. Kaufman, the president of the California Judges Association, explained programs maintained by the association to help maintain judicial impartiality. Kaufman stated that the association maintains a “response to criticism unit” to help insulate judges from political attacks based on unpopular legal opinions.
He cited the successful effort to persuade Sacramento County voters not to sign recall petitions targeting Superior Court Loren McMaster following a ruling, upheld on appeal, that Proposition 22, the statutory initiative stating that only marriages between a man and a woman are recognized in California, does not invalidate the state’s domestic partner law.
Stanford professor and former dean Kathleen M. Sullivan of Stanford University. Professor Sullivan discussed the impacts of Republican Party of Minnesota v. White, 536 U.S. 765 (2002) which invalidated a Minnesota law preventing judicial candidates from discussing public issues that might come before the court.
Concerns that the ruling handcuffs efforts at keeping election-related politics out of judicial decision-making may be overstated, she suggested. “There are very powerful arguments that can be used to prevent special interests from using the First Amendment to influence judges,” she said.
Copyright 2008, Metropolitan News Company