|Judicial independence. Adversary
justice system. Constitutional rights. Officer
of the court. Independent advocacy. Attorney-client privilege. Zealous representation. Independent bar.
These are words and phrases often thrown around by lawyers, but not
adequately understood by voters, or by those elected to the legislative and executive
branches, or even by lawyers. I wonder what answers Jay Leno would get in his sidewalk
interviews if he asked what was meant by independence of the bar. I even
wonder what the answers might be if the same question was presented to lawyers!
These words and phrases, often repeated into cliche status, largely
form the basis for core values in our constitutional democracy. Yet there is a subtlety
about them that leaves them unknown or misunderstood by far too many people. This is
reflected in cocktail party questions about a lawyer representing someone known to be
guilty, or a lawyer protecting clearly confidential communications of a mean corporation
we would all like to see whacked, or a judge appointed for life and not subject to
election, or a lawyer seeking to exclude evidence improperly obtained, or a lawyer arguing
against a public school teacher leading a prayer that most everyone wants to hear.
The failure to understand subtle core values of our profession is one
of the reasons why lawyers have a bad image. Another reason is our self-importance and
self-righteousness while pursuing our undeniably important duties in our constitutional
democracy. With humility, therefore, let us review the importance of the two related but
different concepts of an independent judiciary and an independent bar. Such reviews might
make our subtle core values more obvious to citizens, and to legislative and executive
officers, and, yes, even to lawyers.
The bottom line on judicial independence is that it is necessary in
any society where a simple majority does not always rule. In our society, a super majority
would ultimately be required to enact laws contrary to certain constitutional values. An
independent judiciary is necessary to assure that legislative and executive officials
elected by a simple majority do not destroy these constitutional values. Thomas Jefferson
protested in the Declaration of Independence the fact that King George III made
Judges dependent on his will alone. United
States Chief Justice William Rehnquist has called judicial independence one of the
crown jewels of our system of government.
ABA President William G. Paul recently stated:
The genius of the American system of government is the delicate
balance that has been crafted between and among the three independent branches. For more
than two centuries, this separation of powers has worked to protect and defend freedom in
our nation. Indeed, our progress as a society often has been forged by a judiciary free
from partisan politics, a judiciary acting on the basis of what is right and just, not
what is popular.
We must keep alive the crown jewel of judicial independence.
Another subtlety often ignored is the difference between an
independent judiciary and an independent bar. The important work of judges is done with an
independent judiciary. But the work of judges
can only be done through cases and issues framed and presented by lawyers.
In this sense, lawyers, as adversaries, are the principal players in
our adversary justice system. As noted in a previous presidents column, lawyers (and
bar associations) also play an important role as supporters and defenders of our judicial
system and its judges, a role made more important by the limitations placed on judges in
performing this role.
All these important functions of lawyers are threatened if the bars
independence is threatened. I was struck by this point a few years ago when a lawyer from
South Africa noted that justice in his country could not be obtained without an
independent bar. Despite the importance of this point, it is generally overlooked in our
country, and deserves more attention.
Our system is indeed based on subtle core values expressed in phrases
too often lost as cliches, phrases like an independent judiciary and bar. Lawyers and bar
associations must crack through these cliches and preserve our vibrant core values.