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

"Independence of judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves"
The Federalist Papers, No. 78

The Framers of our Constitution realized that the judiciary was the weakest branch of the new United States government and subject to attack from the other two branches, or from the outside, because it neither had the power to enforce its decisions nor held the nation's purse. At the same time they noted that the judiciary was essential in upholding the U.S. Constitution.

Today we see some of the Founders' worst fears and predictions coming true, as judges increasingly find themselves under unwarranted, harsh and unjustified attack and criticism.

Judges, due to ethics, tradition and rules of court, cannot and should not abandon their duties in order to step down from the bench to defend themselves. It would be unseemly and counterproductive to upholding our system of justice, not to mention interfere with pending litigation.

The American Bar Association, at its recent Midyear Meeting in Nashville, took an important step in illuminating the problem and encouraging others to step forward to support the judiciary, by calling on state and local bar associations "to adopt programs enabling timely and effective responses to criticism of judges."

It is a very significant development in our nation's commitment to a fair and impartial judiciary. Time and again, Americans have rallied to support our judges from those who would undermine the judiciary's basic impartiality and fairness. And lawyers, as officers of the court with a duty to the public, now have clear direction to help keep judges in their areas fair and impartial.

In this age of non-stop media focus on the courts, the public may wonder why judges don't give interviews on the courthouse steps. The answer is relatively simple.

In adopting the ABA resolution endorsing programs to defend the judiciary from spurious criticism, proponents noted that it is generally undesirable for judges to defend themselves.

"This policy has been developed to insure the dignity of the administration of justice, to prevent interference with pending litigation, and to reaffirm the commitment to an independent judiciary, a judiciary dedicated to decision-making based on facts of law as presented," the proponents' report said.

In addition, the report said that comment by a judge "contains the potential of reflecting on pending litigation and may have an undesirable effect on litigants."

The ABA House of Delegates recognized that lawyers need to ensure that the judicial branch of government remains intact from outside, unwarranted criticism. It encouraged lawyers at the local level to get involved in protecting the judiciary. This does not mean that judges should be immune from any criticism. Indeed, in the dynamic American system of self government, robust debate is essential. The interaction of the judiciary with the legislative and the executive branches is an integral feature of how we respond to old problems and prepare for new situations. But our system demands accuracy and clarity rather than the misinformation and intimidation on which some critics rely.

The ABA created the Special Committee on Judicial Independence in August 1997 and charged it to work on preserving a strong judiciary by making the public aware of the risk that unwarranted attacks on judges pose to our freedoms.

The committee also will promote the principles underlying an independent, accountable and efficient judiciary as essential to the American justice system and rule of law, and will work to protect the right of all Americans to have fair and impartial judges who can decide cases based on the law and the facts as presented in specific cases.

The action by the ABA House of Delegates in Nashville on Feb. 2 was an important step in encouraging state and local bar associations to be more involved in supporting the court systems. Now the state and local bars, and individual lawyers, need to be watchful when the critics diminish and intimidate our judges, and infringe upon our system of law and order. Our judiciary has become the model for the rest of the world and we cannot allow it to be tarnished. The ABA's model provides a guide to keep the ideals of our Founders intact.