Federal Bar Association

President’s Message: Judicial Independence

Judicial independence is essential to our democracy and your Federal Bar Association (FBA) is actively working to preserve it.

In his Farewell Address, George Washington lamented the “love of power, and proneness to abuse it which predominates in the human heart.” 1 Accordingly, he praised the Constitution’s checks and balances. He wrote of “the necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositories and constituting each the guardian of the public weal against invasions by the others.”2 Each branch of government checks and balances the other. The primary check held by the judicial branch of government is the ability to interpret and review the constitutionality of those laws passed by Congress and the actions of the president.

In order to enable the courts to do their constitutional duty, the founders realized that our judges must be independent and they must be seen to be independent. Without independence, another branch could influence or overpower the judiciary, leading to the evils that Washington sought to avoid. The independence of the judiciary is required so that judges will be disposed to exercise their judgment instead of their will, when interpreting the laws and determining the constitutionality of statutes. It is required to guard against those times when “ill humors … occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”3 And so the drafters of the Constitution decided that our federal judges would hold offices “during good behavior,” rather than for a limited term of years. A judge could now decide a matter on the merits and in conformity with the Constitution without concern for the repercussions from political masters. They could remain steadfast “when at times the mob is swayed to carry praise or blame too far[.]”4

But while lifetime appointment is the paramount mechanism to ensure judicial independence, more is needed. Lifetime tenure means little if the courts are not funded, if a judge’s salary is reduced in real terms over the years, or if the integrity of the judges who sit on the bench is called into question, without answer.

And so maintaining judicial independence is a fundamental tenet of your FBA. We work to make sure that our courts are in a good position to fulfill their constitutional duty. We do this in many ways:

Led by the Government Relations Committee and its longtime chair W. West Allen and Government Relations Counsel Bruce Moyer, we lobby on Capitol Hill for a full complement of federal judges and for full funding of the judiciary, including the maintenance of judicial pay. This attention to money may seem crass but it is very real, and it has always been such. Before the Constitution was ratified, Alexander Hamilton wrote of the need to lure skilled lawyers of integrity to the bench and away from lucrative lines of practice.5 Lawyers do not become judges in order to become wealthy, but we should at least provide them with the funds, personal and professional, to do the work we ask them to do.

Your FBA seeks to protect our judiciary from undue influence. Our statement on judicial independence serves as a bedrock of our organization and provides, in part, “Judicial independence, free of external pressure or political intimidation, lies at the foundation of our constitutional democracy ….We affirm the right to challenge a judge’s ruling for reasons based in fact, law or policy. However, when robust criticism of the federal judiciary crosses into personal attacks or intimidation, it threatens to undermine public confidence in the fairness of our courts, the constitutional checks and balances underlying our government, and the preservation of liberty.”6 This is the policy of our organization and a foundational precept of our democracy. It’s what the FBA is about.

The FBA also is actively involved in educating our country’s youth through a national civics program that teaches our children about the existence and importance of an independent judiciary. We’re helping to develop the next generation of lawyers through mentorship and by providing opportunities to build rewarding careers; there is a plan to pass this torch forward.

I invite you to come be a part of that plan: come to Capitol Hill Day on April 26, 2018, when we lobby Congress on behalf of the third branch, take the time to educate your fellow citizens about the good, independent work done by our judges and our legal system on a daily basis; invite our schoolchildren into your courts to learn about the American justice system; and then mentor a younger attorney to follow in your footsteps. The FBA has a program in place to help accomplish each step along the way. I hope you’ll join us.

When speaking of the constitutional checks that our Constitution distributes to each branch of government, President Washington said, “To preserve them must be as necessary as to institute them.”7 As lawyers—as FBA members—that’s our job: to preserve the independence of the judicial branch of government, so that it may continue its constitutional role in our democracy. With your help, the FBA will continue to deliver on President Washington’s charge.

Endnotes

  1. George Washington, Washington’s Farewell Address, S. Doc. No. 106-21, at 19.
  2. Id.
  3. Federalist No. 78, at 5 (Alexander Hamilton).
  4. Robert Frost, Choose Something Like a Star, in Collected Poems, Prose & Plays (1995).
  5. Federalist No. 78, supra note 3, at *.
  6. Statement of the FBA Board of Directors on Judicial Independence, http://www.fedbar.org/Leadership/Judicial_Independence (February 2017)
  7. Washington’s Farewell Address, supra note 1.

Kip T. Bollin is the FBA president and a litigation partner at Thompson Hine LLP in Cleveland, Ohio. Kip Bollin can be reached at kip.bollin@thompsonhine.com