Judicial independence is a subject that has gotten a
great deal of attention in recent years. Typically it refers to
independence from executive and legislative interference with decisions
of the judiciary. The term generally deals with the entangling of the 3
separate branches of government and the efforts to keep decisions of the
judiciary free from pressure or influence by the other 2 branches.
Common concerns related to limitations on our jurisdiction as well as
statutory provisions addressing salary and terms, are all things arising
out of the structure of our government. This structural approach to
judicial independence is, however, but one way to approach the subject.
I would like to address for a brief moment limitations other than those
posed by other branches of government because in reality, the structural
infringements by these considerations remain largely in the background,
as well they should. After all few of us are like the judge in Miracle
on 34th Street presiding over the trial of a man who claims to be Santa
Claus. As many of you recall, the judge's political sponsor, played by
William Frawley, tells him to decide the case in favor of the defendant
Kris Kringle if he wants to retain his judgeship. Similarly, we are not
typically identified with the names of the governors who appointed us
the ways federal judges are to the appointing presidents as a shorthand
for supposed political ideology.
So what do I think of when I think of judicial
independence. I guess I define it best by what it is not. Independence
does not mean the freedom to decide cases autonomously as one sees fit.
We do not decide cases according to what we think is right, but rather
according to what the law is. If we listened only to our inner compass,
we would pay no regard to precedent and by our decisions, we would
create no precedent.
Nor does the judge have the freedom to write or speak on
topics of her choice. We are limited to issues that arise out of the
litigation before us. A great example of this point is Ambrose Bierce's
fable:
"An Associate Justice of the Supreme Court was sitting
by a river when a traveler approached and said: "I wish to cross. Will
it be lawful to use this boat?" "It will," was the reply: "it is my
boat." The traveler thanked him, and pushing the boat into the water
embarked and rowed away. But the boat sank and the traveler was drowned.
"Heartless man!" said an indignant spectator. "Why did you not tell him
that your boat had a hole in it?" "The matter of the boat's condition,"
said the great jurist, "was not brought before me." Although that is an
extreme example, it is not an aberrant one.
We also do not have the freedom associated with tenure
in academia. A judge is limited to the particular case and controversy
before her. To demonstrate how different this is from academia, imagine
a world in which an academic could only write on those issues and topics
raised by her students in class. But although judges, unlike academics,
do not operate solely in the world of ideas, academics do not operate in
the world of coercion. In the words of Robert Cover, "Legal
interpretation takes place in a field of pain and death . . . signaling
and occasioning the imposition of violence upon others: A judge
articulates his understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life." Although
this sounds a little over dramatic, it illustrates the point that, as
judges, we have to make choices between competing alternatives, often
with full awareness of the fact that no one option stands out as right
and that every option has an impact on someone's life.
And finally, pursuant to the Code of Judicial Conduct,
judges face an array of limitations on what we can say and where we can
say it. The confluence of limitations on what judges can say in public
and in the context of a case is a REAL restraint on the ability of
judges to influence the general shape of the law.
So where does our freedom come in? Is the independence
of which I speak synonymous with neutrality? That is to say no
preference for one party or another, no bias? Part of what it means to
be independent is to be able to adjudicate cases without being unduly
bound by personal or sociopolitical loyalties. Bringing a certain
perspective to the bench, in my case a middle class Jewish female, and a
former public defender, is different than responding to a fidelity
imposed by association. Judges face the possibility of losing status
within one's group for not acting or deciding cases as the group
demands, but in the end, a judge's sociopolitical group loyalties cannot
replace her constitutional ones. Perhaps judicial independence is best
explained as the self-satisfaction that the judge is content in her
position as a judge with no driving ambition to be anything else. A
judge in pursuit of something other than adjudicatory excellence may
subordinate her institutional role as a judge to her personal
nonjudicial aspirations. Judicial independence is not complete
independence in the sense that its possessor may do whatever she wants.
Indeed, life offers no such independence under any meaningful
circumstances. Everyone must know and appreciate her boundaries. True
judicial independence for me then is the knowledge that I have the best
job in the world, and that I am unencumbered by anything other than the
goal to do that job to the best of my ability. I treat today's honor as
a reflection of your sentiment that I am on the right track. Thank you
so very much.
