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THE VIRGINIA BAR ASSOCIATION JUDICIARY COMMITTEE
MODEL SPEECH ON INDEPENDENCE OF THE JUDICIARY
(edited)

Good morning/afternoon. I'm Judge _______ of the Circuit Court of __________ and I thank you for the opportunity to talk with you about the role of judges in our democracy.

There was a time when all Americans passionately debated the fundamental principles of our constitutional republic. Government wasn't just an unpopular, required class in high school — it was something we created ourselves to serve the important ends of life, liberty, and the pursuit of happiness. Patriots had died over these rights and "we the People" vigorously discussed our duty to preserve the blessings of liberty for us and for our posterity.

What we attempted in that glorious era from 1776 to 1789 had never before been successfully attempted. The world watched — some in sneering contempt at the upstart nation that believed rights came from God and not the state, and some in quiet hope that what we wrought here would come to pass in the entire world.

Over 200 years later, our system survives — with the oldest written constitution in the world and a society of free citizens that is the envy of the entire world.

The question for us today is how to tend our republic. How do we preserve it and make it better? How do we guarantee that this experiment in liberty survives in this new century and new millennium? I submit that the answer is as old as the republic itself: we do the same things we did 200 years ago. We apply timeless principles to changing times; we encourage free and frank discussion and criticism; and we cling to the vision of freedom for all people.

I'm here today to talk about judges and the judiciary — especially the principle of the independent judiciary in our republic. To discuss this issue, we need to look back at our founding.

Our judiciary was created to be one of three, coequal and separate branches of government — each with limited powers — and each intended to check and limit the power of the other two branches. The whole idea of an independent judiciary takes us back to the beginnings of our government — our "more perfect Union."

From the very beginning, Virginians made extraordinary contributions to the development of the constitutional tradition in the United States. In 1776, John Adams of Massachusetts even acknowledged: "We can all look to Virginia for examples." We all know that Thomas Jefferson and James Madison, as well as other Virginians, did their part in the American Revolution.

Let me read something to you that many of you will recognize from the days of Jefferson and Madison — and from your own school days:

The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having, in direct object, the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world...

There follows a list of grievances against the king, including the following:

... He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.

These are words taken from the American Declaration of Independence, one of the most universally revered documents ever written. And with the Declaration of Independence as the promise, our American Constitution became the fulfillment, including the principle of judicial independence as part of that revolution several centuries past.

Make no mistake: Freedom is the linchpin of our constitutional republic. And our courts — with their independence — play a pivotal role in preserving freedom through justice administered without favor or partisanship. It is the rule of law — and its impartial administration by the courts — that allows the rich and the poor, the educated and the uneducated, the strong and the weak to stand without distinction in the leveling light of the Constitution and our body of law. When impartiality or the perception of it is compromised, freedom and democracy are compromised, because individuals no longer come before the law as equals.

A few characteristics ought to be remembered about the judiciary. Specifically, the judiciary, although a coequal branch of government, is very different from the executive and legislative branches. Judges, whether appointed or — as with Virginia state judges — elected by the legislature, do not represent us in the same way as do those in the legislative and the executive branches. They, in a sense, represent the Constitution and the laws made pursuant to them. Their decisions must be based upon a studied interpretation of them, even if the result is unpopular at the time. Public opinion and the judge's personal preferences are irrelevant in the courtroom.

If judges are to remain independent and the administration of justice impartial, we must remind our citizens, our judges and the other two branches of government of a few things. Those few things carry large implications for the principle of judicial independence — what is essence Chief Justice Rehnquist has referred to as "one of the crown jewels of our system of government today."

First, judges should be evaluated based upon their knowledge of the law and their adherence to the law — not upon whether several of their decisions were reversed on appeal or unpopular. We have appellate courts to review and correct lower courts' decisions, and it's not unusual that a judge gets reversed from time to time.

We all disagree with judicial decisions at times. When you think about it, half of the people who enter a courtroom are going to disagree with a judicial decision. The question is not whether we like a decision but whether the decision adheres to the law — not the judge's own personal inclinations.

Judges have to work within the framework of the law. If citizens dislike a particular decision, it may very well be that we need to turn to the other branches of government to change the law. The answer rarely will be to attack or change the judge, although in Virginia our General Assembly retains and exercises the prerogative not to reelect a judge.

Don't misunderstand what I'm saying: Public debate and even criticism of judicial decisions are part of our country's grand tradition of open and free debate. Principled and informed criticism of judicial decisions can be valuable. But partisan attacks on judges and on judicial nominees can pose a risk to judicial independence, as can partisan delays in the selection process.

Second, judges should not be asked — and should not declare — in advance how a particular case would be decided. Facts vary from case to case, and changes occur yearly in both federal and state statutes that might affect the outcome of a case. Each case has to be decided on its own merits, rather than on some pre-announced, currently popular position. Again, to ask a nominee or sitting judge for a prediction — rather than about his or her experience and view of the judiciary's function of applying the law — jeopardizes the perception of our judiciary's impartiality.

Third, while legislatures certainly have the right — within constitutional limits — to define the powers and funding levels for our courts, these decisions should be based upon logic and efficiency, with keen appreciation of the increasing case demands upon our judiciary. Such decisions should not be used as an expression of legislative pique or as punitive tools for unpopular court decisions which have been made according to law. That kind of political intervention in the justice system would abridge our governmental separation of powers among the three coequal branches. In Virginia, the General Assembly has appreciated these kinds of considerations, working with our state courts to deal with changing economic times and the funding shortfalls. It also has reflected in its legislation an effort to define — and refine — the boundaries of proper, limited judicial decisionmaking.

Finally, although independent, judges must be and are accountable in our system of justice. Judges must apply democratically enacted laws, and they are obligated to follow controlling precedent. They also are subject to Canons of Judicial Conduct and, for our Virginia judges, to discipline by the Judicial Inquiry and Review Commission. The preamble to Virginia's Canons of Judicial Conduct harkens to judicial accountability and what is at stake, using these words:

Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law... [J]udges, individually and collectively, must respect and honor the judicial offices of public trust and strive to enhance and maintain confidence in our legal system.

Judges are rightly subject to discipline and even to removal under certain circumstances and are not beyond criticism of their performance. And "we the People" through our elected representatives, surely are the ultimate judges of the court system we have created, just as "we the People" need to be the ultimate defender of a vibrant and independent judiciary.

In 1782, George Wythe, the finest attorney and judge among the Founding Fathers, wrote that:

if the whole legislature... should attempt to overlap the bounds prescribed to them by the people I, in administering the public justice of the country, will meet the united powers at my seat in this tribunal; and, pointing to the Constitution, will say to them, here is the limit of your authority; and hither shall you go, but no further.

It is the duty of a free People to echo the words of Wythe. As encroachments on the independence of the judiciary appear, the voice of the People should resound: "hither shall you go, but no further." For the people of America need to know that when constitutional freedoms and liberties are endangered, when expediency threatens justice, when fad menaces principle, and when whim diverts consistency, it will be an independent judiciary that is capable to say to all those forces: "hither shall you go, but no further."

In the footsteps of Wythe, we should not merely concede the independence of the judiciary, we should insist on it — from ourselves, from legislators, from executives and from judges. "We the People" rely on that independence to "secure the Blessings of Liberty to ourselves and our Posterity."