Last night on C-SPAN, I watched a discussion before some sort of American Bar Association get-together about the “threat to judicial independence.” There must be such a threat because many of the ABA-types were wearing yellow ribbons (or something yellow, anyway) to display their concern, and their commitment to defending the judiciary’s independence, when they return to their communities. If there is any other evidence of the threat, I didn’t hear it, either from the worried moderator, Harvard law professor Charles Ogletree, or the panelists, Justice Breyer, Senator Graham, and Ted Olson. I did learn, though, that Breyer is earnest and well-meaning; Graham is quite witty and must have been effective with South Carolina juries; and Olson seems capable of tolerating a fair amount of BS.
What about the threat to judicial independence? Well, the panel, paticularly Senator Graham, thought that Supreme Court Justices may one day be subjected to a lengthy term-limit or a mandatory retirement age. Each agreed that implementing either idea would be unfortunate (I disagree), but none contended that either constitutes a threat to the independence of the judiciary.
Justice Breyer complained (with justification, in my view) about how little judges are paid compared to lawyers. But Graham pointed out that this issue goes to the quality of the judiciary, not to its independence. Theoretically, if the quality slips too much, restrictions on independence could follow, but no one pushed this attenuated argument very hard.
Inevitably, the matter of criticism of judges was at the forefront of the discussion. It’s possible, as Justice Breyer hinted, that sustained strident criticism of judges could turn the body politic so sharply against the judiciary as it’s now constituted that it would be replaced by something less independent, or that its rulings would simply be ignored. But no one claimed that we’re anywhere near that situation. Strident criticism of our government, of which there is much, could lead to its violent overthrow and replacement by a Stalinist regime. But that doesn’t mean that such criticism currently represents a threat to democracy. Moreover, as Breyer was quick to acknowledge, criticism of judicial opinions is, on balance, a very healthy thing.
So if you see a lawyerly looking guy (or gal) wearing a yellow something-or-other, don’t take him seriously. He already takes himself seriously enough for both of you.
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“Arise and take our stand for freedom as in the olden time.” Winston Churchill
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