In honor of Texas Governor Rick Perry's proposals for overhauling the federal judiciary. [Revised from Guest Column by Susan I. Nelson, printed in The Waco Tribune-Herald, December 27, 2006]
Since her retirement, former Supreme Court Justice Sandra Day O'Connor often speaks on the importance of an independent judiciary. She does not advocate federal judges as lawmakers but stresses the importance of keeping judges independent from the legislative and executive branches as the Founding Fathers intended. She speaks against judicial reforms driven by partisanship and against attacks on the judiciary made by politicians who disagree with decisions, such as in the Terri Schiavo case.
Justice O'Connor is right. Recent criticism has crossed the line from healthy debate to judge-bashing, and it threatens the fairness and impartiality of our courts.
Politicians and special-interest groups issuing warnings to judges simply because they disagree with the judges' decisions are attempting to be the "dictator" they would assert "activist" judges to be. Such attacks on judges display a fundamental lack of understanding of the role of the judiciary. They ignore the fact that the federal judiciary is a central component in our nation's system of checks and balances.
When our founders wrote the Constitution, they created three equal branches of government, purposely shielding courts from political influence so judges could protect our freedom. The founders were clear that the judicial branch must be independent of the executive and the legislature. They knew the president and members of Congress would be indebted to the individuals who elect them and to interest groups. The Constitution's framers wanted judges to be distanced from those pressures.
An independent judiciary was at the core of the freedom and independence sought by the signers of the Declaration of Independence. Among the facts submitted to the world to prove the tyranny of the King of England over the American colonies were "refusing his assent to laws for establishing judiciary powers" and making "judges dependent on his will alone for the tenure of their offices, and the amount and payment of their salaries." The Constitution created a system in which judges are different; they consider only the facts and the law in making decisions, which gives all of us our day in court. We must not turn back the clock.
Judges are accountable in several ways. Judges must obey the Constitution and other laws and must follow ethical rules and codes of conduct that hold them to higher standards. When someone disagrees with a judge's decision, that person can ask a higher court to review it. Judges don't make the law, they only apply laws written by a legislature. If a legislature does not like the way laws affect the public, it is the legislature that can change them or write new laws; judges do not have this power.
We all have the right to fair and impartial justice. When our courts are attacked unjustly, we must defend them--even if we disagree with the decision--so they will remain able to protect our rights. If we do not, when it is our turn to be in court, we might find a far different judge than the one envisioned by our Founders, one that has become the tool of the privileged few.
When it is our turn to seek justice, we will wish we had spoken out to keep our courts fair and impartial and free from political pressure.