PHILADELPHIA -- Unintimidated judges, "central to the rule of law" in the United States, are possible only with the public's understanding and trust, Supreme Court Justice Anthony M. Kennedy said Saturday.
"Society must believe that judicial independence is attainable," Kennedy told a gathering of federal and state judges. "If you believe in judicial independence, you believe in freedom."He warned that people will not value judicial independence if they suspect it amounts to nothing more than "a power-grab in a black robe" but said even judges who make unpopular decisions can be respected. But for that to happen, he said, their decisions must be perceived as fair.
"The law makes a promise -- neutrality," Kennedy said. "If the promise gets broken, the law as we know it ceases to exist. . . . All that's left is the dictate of a tyrant, or perhaps a mob."
At a seminar on judicial independence, arranged by the American Bar Association, the judges agreed that Americans must know that bare-knuckled politics endanger the courts' independence and impartiality. But the two-day session ended Saturday with no consensus on how to convey the message.
Kennedy, Supreme Court Justice Stephen G. Breyer and dozens of other judges said the nation's lawyers are crucial to explaining the stake ordinary citizens have in deflecting what Arkansas appellate judge Wendell Griffen called "politically motivated criticism" by "zealots who manipulate the media."
Moderating a later panel discussion, Breyer sounded a similar theme. "Judicial independence is a means to a strong judicial institution, which is a means to personal liberty and prosperity," Breyer said. "Ultimately, our institutions rest on what hundreds of millions of people in this country think."
American Bar Association President Philip Anderson, a Little Rock lawyer, has made such education a top priority of his one-year tenure. "Public perception is vital. We need to inform the debate, provide a vocabulary for it," he said Saturday. The symposium is among several the ABA is sponsoring.
Why now?
On the federal level, tensions between the courts and the other two branches of government are high -- in part a carry-over from the 1996 presidential election campaign.
After U.S. District Judge Harold Baer refused to let drugs seized by New York City police be used as evidence in a criminal trial, Republican presidential candidate Bob Dole called for his impeachment. White House officials suggested President Clinton would seek Baer's resignation if he did not reverse the ruling.
The judge later reversed and allowed use of the evidence.
Congressional leaders such as Rep. Tom DeLay, R-Texas, have since suggested that impeachment might be one method of dealing with "activist" judges whose opinions are out of the social and political mainstream.
Federal judges have life tenure, but 87 percent of all state judges periodically face popular elections and are considered far more vulnerable to having their decisional independence threatened by political pressures.