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Investing in judicial independence

By Anthony P. Capozzi
President, State Bar of California

Anthony Capozzi

As president of the State Bar of California, I have had the opportunity to speak at various enrobement ceremonies for new judges. I often mention that our society is based upon the rule of law and that our society is meant to be a rational system of justice characterized by fair play and common sense. The judiciary has made and continues to make enormous beneficial contributions toward improving the legal fabric that holds our democratic society together. 

The secret to America’s success is not Wall Street, it’s not the “dot com” entrepreneurs, it’s not he armed forces, it’s not the free press and it’s not the free market, but rather, it is the enduring rule of law and the institutions that underlie them all, that allow them each to flourish no matter who is in power.

Judges are often criticized for the decisions they make. However, the critics, almost without exception, are not familiar with all of the facts, nor do they realize that judges are bound by certain constraints. Simply said, judges do not have the luxury of making some things come out a certain way, simply because that is the result that they most desire. 

The rule of law as a constraint on governmental power is well recognized. The true role of a judge is to uphold the rule of law and ensure that justice is done. This principle is at the core of our democracy. It is critical that a judge protect the rights of all participants in a trial, as well as the public’s interest.

Judicial independence is a concept that forms the very foundation of our judicial system. Although the phrase is hard to define, the term “judicial independence” embodies the concept that a judge decides cases fairly, impartially and according to the facts and the law; not according to whim, prejudice or fear, the dictates of the legislature or executive or the latest opinion poll. 

Judges must lead by example. They must set the proper tone of civility in the courtroom and in written opinion. Admittedly, it is difficult to be even-tempered, calm and reasonable every minute of the day, but it is the job of the judge — particularly the trial judge. Adopting an authoritarian persona may please a judge, but in the long run, diminishes the esteem of the court. We have all known judges who are irascible, arbitrary, rude and demeaning toward lawyers.

These are the judges who think they are anointed — not appointed. Lawyers, jurors and witnesses all take their cues from the judge and if the judge sends the wrong signals, the entire process suffers.

The basic and most important underlying safeguard for judicial independence is public support for judicial independence. It is important that we develop the public’s understanding of, respect for and confidence in the roles of lawyers and the concept of judicial independence. Judges and lawyers must work with the public to help them become better informed about the work of the courts and to demonstrate the value of judicial independence.

Judges themselves cannot respond publicly to criticism. It is considered unseemly; it is inconsistent with the Code of Judicial Conduct and it would draw judges into the political thicket they must scrupulously avoid.

I believe it is the duty of the bar and its leaders to take the lead and defend the courts and judges — and the independence so fundamental to the system — in the face of unfair attacks or intimidation by politicians or the press.

In my view, it is a basic responsibility of the bar — and individual lawyers — to assure that the courts are not intimidated or subjected to political pressure, by defending the independence of the judiciary and of individual judges when those judges are wrongly attacked, or when their motives, character or integrity are impugned.

It is the obligation of the bar, lawyers and judges to ensure that our courtrooms and legal proceedings are civil and civilized engagements. The public must be given no reason to doubt — either by judges or by those who disagree with their decisions — that the system is anything less than rational, civil and independent. We all have an investment in an independent judicial system which is the beacon of our democracy.

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