Judicial Independence Requires a Cultural Expectation

Expert says judges have obligation to be both independent and accountable

Having a judiciary that can exercise full independence from both legislative and executive pressure helps protect it from changing political viewpoints and private interests. If the concept of judicial independence is practiced in a democracy, a judge is free to decide a case on the basis of experience, legal precedent and best judgment, as opposed to the whim of popular opinion or the interests of powerful political leaders and private individuals.

In the United States, judicial independence has been a "general cultural expectation," according to judicial expert Russell Wheeler who participated May 18 in a USINFO webchat conversation with an audience largely from the Middle East. Politicians should not try to change or influence judicial decisions, he said, adding that if it was discovered that a U.S. president or legislator had summoned a judge to discuss an impending ruling, "it would be front-page news all over the country."

Wheeler argued that a popular expectation that judges will be independent in their decision-making actually is more effective than the law of the land.

"Our experience is that specific provisions protecting judicial independence are less important than a basic cultural expectation that politicians should not tamper with judicial decision-making," he said, adding that in the United States, while that view is not universal, "it has a fairly deep reach."

The obligation for judges to be independent is accompanied by the need for them to be accountable to the public, which pays their salaries through taxes.

"How to accommodate these potentially conflicting obligations is one of the great challenges facing the United States and other democracies," Wheeler said.

He noted that to help ensure their independence, most U.S. judges have lifelong tenures and secure salaries. All of the approximately 1,500 federal judges are appointed by the president or other judicial courts; among the approximately 30,000 judges in the U.S. state systems, some gain office through popular elections.

Wheeler said the majority of those elections are uncontested, but expressed some concern over recent competitive judicial elections in the United States that were very expensive for the candidates.

"This creates two problems: judges must seek funds to run their campaigns, and the logical place to turn are lawyers, some of whom will appear before them in judicial proceedings. The other problem ... is that judges will be tempted to shade their decisions to appeal to voters in the upcoming elections," he said.

As for salary, "I believe the legislature should provide judges an adequate salary that is protected from reduction by some basic law, such as the Constitution," Wheeler said. But he argued against additional financial rewards, since he said they could set "a dangerous precedent that could lead to selective favoritism toward certain judges."

The other side of judicial independence is judicial accountability, whereby judges should be accountable for how they spend the funds that the legislature has provided for the administration of the courts. Also, U.S. judges periodically must report their financial holdings. Wheeler pointed out a federal law that says judges "may not participate in cases if they have even a small financial interest in the parties (even one share of stock)."

As part of judicial accountability, the U.S. government and states set up mechanisms whereby people can complain about alleged judicial misconduct or disability. In that process, a chief judge considers the complaint and refers it to a special investigation committee if the charge appears to have a factual foundation. If a judge has been found to be in the wrong, he/she could face censure, temporary suspension or other sanctions. However, Wheeler said judges who have a lifetime appointment can be permanently removed only through impeachment, and "that has happened only rarely."

For federal judges, these mechanisms are valuable mainly as an "informal method of discipline, or resolution of problems" to provide them leverage over a colleague when they become aware of a problem. With the threat of possible punishment, they can approach a colleague and seek a solution even before a member of the public files a formal complaint.

"In any judicial system, there will be mistakes, and, of course a 'mistake' is to a degree a matter of opinion," Wheeler said, acknowledging that most who have lost legal cases "no doubt often believe the court made a mistake.

"I don't think U.S. courts reveal widespread miscarriages of justice in the sense of rulings influenced by corruption. Usually the causes of judicial mistakes involve decisions to admit evidence that should not be admitted," he said, though there have been cases in U.S. history where justice has been miscarried because of racial prejudice.

"Generally, though, we believe that judicial independence is so important that we have to tolerate occasionally judicial errors rather than punish the judge for them," he said.

American judges largely do not have to worry as much as some of their foreign counterparts about the threat of violence. Wheeler estimated that 20 or 30 violent attacks occurred over the past several decades, and the U.S. Congress is providing more money to protect judges in the courthouse as well as their homes.

However, in recent years some members of Congress have voiced heavy vocal criticism of Supreme Court and other justices and Wheeler described relations in this decade as being "very bad," with congressmen calling for the removal of judges or to withhold funding for unpopular decisions in such areas as religious displays in public places, abortion, and the rights of homosexuals.

"This type of 'court curbing' has occurred throughout American history, and rarely has it succeeded, because of the deep cultural attachment I described earlier to impartial decision-making," Wheeler said.

In general, American politicians, including presidents, have willingly complied with court decisions even if they opposed them. "President Nixon resigned after the Supreme Court said he had to surrender the Watergate tapes, and President Clinton submitted to civil process after the Supreme Court said he had no immunity," he said.

As a response to some congressional attacks, Wheeler said the late Chief Justice William Rehnquist reminded the lawmakers and the American people that "judicial independence exists to protect all people."

"Those attacking judicial independence today may find themselves in need of a court's protection tomorrow," he recounted Rehnquist as saying.

Source: U.S. Department of State

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