Judge-Bashing Appears To Be Popular Sport Among Some, But Endangers An Essential Component Of American Justice

By

William S. Sessions
Chair, ABA Special Committee on Judicial Independence

Lately it seems there have been a spate of media attacks on judges voiced by people who criticize the judicial system to make their own political statements.

Many well known politicians blame judges for the ills of society. Why? Because judges are easy targets, often because they do their difficult job of resolving disputes fairly and impartially in full view of the public. We all know that when law suits are tried in the court, there are happy winners and unhappy losers. Often these losers claim their "loss" was the result of the judge's political views.

Many of these these criticisms avoid the real issue, which should be carefully examined, and become unfair, often harsh, criticisms. We sometimes call these accusations "cheap shots." In today's charged political atmosphere a judge may be unfairly criticized because the accuser has focused on a single political issue and does not like a decision the judge has made. Many times, these judicial decisions have been made when the judge is called on to interpret vague provisions of laws enacted by the Congress and state legislatures, and the critic disagrees with the interpretation given to the vague law by the judge.

The American public is not to be trifled with when it comes to unfair criticism. They can see through the objective of the critic. Americans, nationwide, trust the courts, understanding that the founding fathers set up a system of "checks and balances" in order to assure that there would be a non-political third branch in our government to balance the power of the political branches -- the legislative and the executive. In doing so, they acknowledged that the judicial system would be particularly vulnerable to political attacks from critics inside the government and outside. The founding fathers were confident that the judicial system could and would survive and flourish.

The power of the state and federal courts, established by constitutions, has earned the respect and support of Americans who understand that many difficult and controversial matters must be decided in a politically impartial manner. The decisions are often naturally controversial because the legal principles upon when they are made flow directly from the constitutions themselves, and constitutions are written in order to survive politically turbulent times. The American people understand that our system of democratic governance, with its independent courts, is much-admired around the world and that many new emerging democracies are modeling their court systems after our system.

Public servants, including judges, should not be above criticism. Their decisions should be analyzed, within the judicial system and without, to ensure fairness and impartiality. Judges' conduct should faithfully and invariably be guided by the requirements of ethics and those of the law. Judge's work product should always be professional and accessible.

Criticisms should be freely expressed by citizens who disagree and dissent and have opinions of their own to express. BUT -- criticism should be based on the actual facts and fairly address the true issues.

Oftentimes the attack is blatant political posturing based on misrepresentation of fact.

America has about 50,000 federal, state and local trial and appellate judges. The judiciary becomes involved in a case only because there is an unresolved dispute and a law suit results. Unlike the legislative and executive branches of government, judges in all situations must make a decision disposing of the dispute. We rarely hear about the millions of cases where the litigants are satisfied with the result and society's best interests are served.

Judges do not work in a vacuum. There are a number of systemic checks over judges that guarantee the correctness of decisions and the integrity of our constitutional system.

The judicial disciplinary processes, both state and federal, function to ensure that judges act in accordance with existing legal and ethical standards. The judicial selection and tenure processes provide other effective accountability of the judges to the citizens. These checks help assure all of us that the judicial process is fair and impartial, without involving the courts in partisan political activity.

The characterization of a judge as "the worst" or the decision of a judge as "stupid" seems most often to relate to a decision in a particular case with which the critics disagrees. So if a critic favors the death penalty, then any other decision draws the anger of the critic and a harsh and unfair description of the judge.

A judge's responsibility is to handle all phases of the court's business, including trial, in a fair and impartial fashion. Judges must be guided, not by political partisanship, but by the law and the Constitution. All of us want, and should demand, nothing less.

Our responsibility as citizens in evaluating and critiquing a judge's performance should be equally objective -- has the judge, in a fair and impartial fashion, dealt with the legal matters before the court in a competent and professional fashion? If not, then criticism is appropriate and the judge should expect to answer for conduct which did not meet society's standards.