Justice in Jeopardy

By Alfred P. Carlton Jr.
President, American Bar Association

Carlton

"The legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and nonpartisanship." — Mistretta v. United States, 488 U.S. 361, 407 (1989)

The judicial systems of the United States remain unparalleled in their capacity to deliver fair and impartial justice. Yet despite their many strengths, they are systems placed in serious jeopardy by the corrosive effects of money, partisanship and special interests on the selection of judges, by the lack of diversity in our nation's courthouses, and by the growing perception among Americans that political influences on courts threaten the cherished norms of impartiality and independence that have made the judiciary the "bulwark of the Republic."

At the 2003 Annual Meeting in San Francisco, the American Bar Association House of Delegates will consider the recommendations of the ABA Commission on the 21st Century Judiciary. I appointed this commission to develop a set of guiding principles and specific recommendations for ensuring an independent, accountable and impartial judiciary in the 21st century, with a special focus on accommodating the principles of merit selection in a new model of judicial selection that minimizes the escalating politicization of state courts.

The commission was led by distinguished honorary co-chairs Abner J. Mikva and William S. Sessions, two dedicated public servants with lifelong commitments to the independence of the judiciary, and chair Edward W. Madeira Jr., who led two previous ABA commissions on judicial independence and state judicial selection. The commission's membership included leaders of the bench and the bar, a former governor, a state legislator and a corporate CEO.

The commission held four public hearings in fall 2002, hearing testimony from 31 witnesses with expertise in the administration of justice who described the impact of the increased politicization of the judiciary on the administration of civil, criminal and juvenile justice. The commission also heard extensive testimony on issues relating to diversity in the justice system and funding of state court systems.

The commission released its draft report, "Justice in Jeopardy," at a March 2003 national colloquium in Raleigh, N.C., sponsored by Lexis-Nexis, the Joyce Foundation, the Open Society Institute and the Z. Smith Reynolds Foundation. More than 150 judges, lawmakers, bar leaders, business and civic leaders, academics and journalists attended and provided valuable comments on the commission's recommendations.

Preserving the judiciary's institutional legitimacy

The commission recommends the following steps be taken:

• States should establish credible deliberative bodies to assess the qualifications of all judicial aspirants, develop evaluation programs to assess the performance of all sitting judges and provide mandatory continuing judicial education.
• The commission calls for a comprehensive review of the ABA Model Code of Judicial Con-duct, which is already underway, and more active enforcement of state codes of judicial conduct.
• The commission makes several recommendations regarding diversification of the justice system, including enhanced recruitment and mentoring programs for law students and attorneys of color, greater diversity on judicial nominating and evaluation commissions and among non-judicial court staff, and improved jury pool representation.

Improving judicial selection

The commission outlines a system of state judicial selection under which judges are appointed to serve a single, lengthy term or until a specified age, following review and approval by a credible, neutral, nonpartisan and diverse body. The commission finds that the greatest threats to judicial impartiality and independence are posed by re-election or reappointment, and thus recommends that judges not be subject to formal reselection.

Rather, judges should undergo regular performance evaluations and enhanced disciplinary processes to ensure an appropriate level of accountability to the public and to the highest standards of performance and conduct.

Recognizing that many states are unlikely to alter their selection methods in the near future, the commission also offers a tiered set of alternative recommendations, including: reappointment rather than re-election for additional terms, retention elections rather than contested campaigns, the use of nonpartisan elections and public financing where contested elections are maintained, longer judicial terms and voter guides to better inform the public about judicial candidates.

Promoting an independent judicial branch that works effectively with the political branches of government

Finally, recognizing the strain placed on state court systems during times of declining state revenues, the commission recommends the establishment of standards for minimum funding of judicial systems to ensure that essential services are provided to the public.

The commission recommends that state court budgets be segregated from those of the political branches and that judicial branch leaders be given greater flexibility to manage funds. The commission also recommends that states create independent commissions to establish judicial salaries, an issue that will be addressed by the House of Delegates at the 2003 Annual Meeting.

I encourage all members of the legal profession, and all Americans concerned with the health of our justice system, to redouble efforts to ensure that our courts remain independent, fair and impartial in perception as well as in fact. The report of the ABA Commission on the 21st Century Judiciary provides a roadmap to navigate the challenges we face — together we can chart a course that will ensure justice for all.