As officers of the court, attorneys are duty bound to uphold the rule of law and to assist in the fair administration of our courts. In doing so, we must protect the ideal that our courts are fair and impartial as well as accountable to the law. Indeed, a fair and impartial judiciary is at the cornerstone of our democracy.
We are fortunate in Massachusetts to have a judiciary which remains fair and impartial. Yet, judicial independence is under attack throughout our nation. Unpopular sentencing results in public outcry. Judges are criticized for decisions which may not meet political expectations.
So virulent is the fear of so-called "activist judges," that a multitude of extraordinary ballot measures have appeared across the country this November in an effort to strip the judiciary of its constitutional mandate.
In Oregon, a proposed measure would allow appellate judges to be elected by geographic district in order to reflect local ideologies. In California and Nevada, proposed initiatives would restrict a judge'€™s ability to condemn private property. In Colorado, a proposed amendment would limit judicial terms to ten years. Significantly, under South Dakota'€™s Amendment E, judges may be subject to personal liability for their decisions. At trial, Amendment E cautions jurors "not to be swayed by artful presentation by the judge."
Despite its political allure, ensuring a fair and impartial judiciary should not be a partisan issue. Both conservative and liberal voices have demanded that the judiciary maintain its place within the constitutional framework of separation of powers.
Chief Justice John Roberts Jr. recently quoted President Ronald Reagan'€™s definition of judicial duties stating, "The judge'€™s commitment to the preservation of our rights often requires the lonely courage of a patriot." Justice Stephen Breyer, a President Bill Clinton appointee, and Justice Anthony Kennedy, a Reagan appointee, have both spoken out on the importance of a fair and impartial judiciary. The ABA has recently circulated a DVD, "Countering the Critics," which addresses attacks on the judiciary.
Chief Justice Roberts has urged, "Just as attacks on judicial independence came from all parts of the political spectrum, so should the defense of judicial independence." As a bar, we must work to ensure judges are free to render decisions pursuant to the facts, the rule of law and free from ideological pressure.
Threats to the judiciary stem from many corners. But it is the public'€™s misconception of the role and function of our judiciary which seems most fundamental. In meeting the need to educate the public, we must first ensure that as a bench and bar, we are free to discuss issues relating to the administration of our courts. Without such dialogue, our voice lacks unity and strength.
The Massachusetts bench and bar have long enjoyed a relationship which strives to preserve a fair and impartial judiciary. Recognizing the importance of such discussion, the Massachusetts Bar Association is proud to present its first Bench-Bar Symposium on November 30 at the John Adams Courthouse. The symposium will feature a panel discussion on how we may effectively work with the media to ensure that public perception of our courts is accurate. Without question, public understanding of the law is seen through the lens of the media. In order to improve public understanding of the legal system, we should build on our collaborative relationship with the media.
A fair and impartial judiciary should not be taken for granted. Unless we unite in preserving a judiciary which is free from political pressure, judicial independence will remain imperiled.