Opinion Editorial

Individual States Tackle Issues Of Judicial Independence, As ABA Offers Support

By Alfred P. Carlton, Jr., Chair,
ABA Standing Committee on Judicial Independence

As we approach the millennium, our judicial system again faces challenges anticipated by America's founders, who believed that the inherent strength of the judiciary was the power and trust placed in it by the public. The framers of our Constitution correctly reasoned that the executive and legislative branches would reflect temporary political thought and trends, while the judiciary would protect the rights and liberties of Americans without regard to the shifts in popular opinion.

The founders designed a constitutional democracy based on a system of checks and balances. You can't have checks and balances without an independent judiciary.

But federal and state judges increasingly have come under attack from groups with narrow, single-issued agendas. Checks and balances do not exist without an independent judiciary, which is a peculiarly American concept. Particularly at the state level, there is evidence that some public officials and single-issue interest groups want to intimidate judges into doing what they regard as politically expedient correct, threatening their ability to perform their constitutional duties.

To help curb this harmful trend, in 1997 the American Bar Association created the Standing Committee on Judicial Independence to assist state and local bar associations defend judges, who cannot respond to inaccurate and unwarranted attacks due to ethical constraints.

In 1998, Tennessee became the first state to receive ABA assistance, with the support of the Open Society Institute.

Tennessee�s judicial retention elections had become an example of what a small group can do to unduly influence voters. In 1996, in an election characterized by misleading and inaccurate information from a special interest group, Tennessee voters decided against retaining State Supreme Court Justice Penny White. Only 19 percent of Tennessee voters cast a ballot.

Fearing that special interests might again dominate the 1998 judicial elections, the Tennessee Bar Association, with assistance and resources provided by the ABA, initiated public awareness program about the importance of judicial elections and the need to evaluate a judge�s complete record, not merely considering a single decision.

In order to implement the plan, the ABA and TBA formed a partnership with the Farm Bureau and the League of Women Voters in Tennessee to raise public awareness.

Using public service radio advertisements, the TBA offered information to the voting public on the judicial elections. Response to the short and regionally limited radio ads showed extremely high interest. The TBA received several hundred calls for additional judicial evaluation information, and its website recorded several thousand contacts, proving that Tennesseans care about their judicial system. Armed with complete and accurate information, voters headed to the ballot boxes and all Tennessee appellate judges were retained in office.

Other state and local bar associations also are aiding imperiled judges.

In Oklahoma, judicial retention elections sometimes become partisan, derogatory contests.

The Oklahoma State Bar Association has formed a "rapid response" team to combat unwarranted attacks on judges during non-election periods.

In Illinois, state and local bar associations are focusing on judicial election reform after a voting booth nightmare in 1998 when even the most informed voters in Illinois could not wade intelligently through the ballot containing dozens and dozens of judicial candidates. In 1998, hundreds of candidates appeared on the ballot, without the usual party affiliation identification.

Combating unwarranted and unjustified judicial harassment is simultaneously complicated and simple.

The ABA will continue to work with state and local bar associations for an impartial judiciary. It has prepared several guides to help. The special committee has a printed and video guide to help grassroots efforts to support an impartial, accountable and efficient judiciary, and it is ready to lend its aid to states working to protect an independent judiciary.

But the simplest way to protect the judiciary is on election day when an informed electorate goes into the voting booth and makes sensible decisions based on the best candidate possible - that is the essence of our system of government and the embodiment of the hopes of our Founding Fathers.