Independence of the Judiciary

Reconciling the independence of the judiciary with election campaigning is very difficult. It was timely, then, that I discovered that the ABA litigation section now has RSS feed. When I subscribed, some older articles were delivered, including a poignant one, A Lawyer’s Letter To His Daughter, by H. Thomas Wells, Jr., Chair, Section of Litigation when it was written in 2000.

Reconciling the independence of the judiciary with election campaigning is very difficult. It was timely, then, that I discovered that the ABA litigation section now has RSS feed. When I subscribed, some older articles were delivered, including a poignant one, A Lawyer’s Letter To His Daughter, by H. Thomas Wells, Jr., Chair, Section of Litigation when it was written in 2000.
“Promote the independence of the judiciary before whom you will practice. An independent judiciary is a hallmark of our justice system, and we lawyers should defend it vigorously. Remember that judges must make hard decisions; do not stand idly by when they are attacked for them. The ethical rules prevent judges from responding to attacks — even unwarranted ones — upon them or upon their decisions. It is therefore up to the professional bar, and especially the trial bar, to respond on their behalf, even when reasonable persons could disagree about whether the decision the judge has reached is a correct one. Without an independent judiciary, litigation practice would degenerate into little more than influence peddling, if not outright combat. An independent judiciary helps keep us a nation governed by laws, not by the whim of men or women.’
The entire letter is worth saving for any lawyer who has a child entering the profession; good advice, all of it.
2000 was light years ago in elective judicial politics, though. Now that judges can espouse positions, align with political parties, raise huge sums from special interest groups, the goings-on in election campaigning are going to undermine the independence of our judiciary. We must find a better solution.
Finally, you may ask with this statement of beliefs, how is it helpful to the law to criticize appellate decisions? I view talking about development of the law not as a disparagement of any appellate judge or justice, but as part of the larger aim of shaping the law in ways that make it not a “stagnant pond, but a moving stream.” If you are a regular reader of this blog, you will know the source of that favorite quote.

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