Elected judiciary not the answer to “judicial activism”

Issue July 2005

During much of our 200-year history, the third branch of our government, the judiciary, was under the radar. Occasionally, certain courts or judges were vilified in the press when “unpopular” decisions were rendered but, for the most part, what was happening in our courts went largely unnoticed by the public.

That has changed gradually over the last several decades. There have been several divisive United States Supreme Court decisions on hot-button issues — Brown v. Board of Education, Miranda v. Arizona, Gideon v. Wainwright, Roe v. Wade, U.S. v. Nixon, for example. Court television and high profile trials have made the public more conscious of our court systems. Also, our country is more divided than at any time in recent history. The red state/blue state phenomenon is new.

Even state court decisions are publicized and scrutinized. The Supreme Judicial Court decision in Goodridge is fodder for talk show hosts and, in the minds of some, influenced the last presidential election.

The issues of judicial independence and judicial activism are not going away. The appointment of the next United States Supreme Court justice will certainly bring this issue to the forefront. Life tenure and the need to have judges elected are also issues that will be debated.

Legislation is pending in our state entitled “Proposal for a Legislative Amendment to the Constitution Relative to the Election of Judges.” The Massachusetts Constitution, which served as a model for the United States Constitution, was founded on the principle that the “legislative, executive, and judicial power shall be placed in separate departments, to the end that it might be a government of laws, and not of men.” Article 29 of our Declaration of Rights provides that “it is the right of every citizen to be tried by judges as free, impartial and independent, as the lot of humanity will admit.”

How can elected judges be free, impartial and independent if they have to solicit campaign contributions and run for election every few years?

A 2001 American Bar Association report highlighted the impact of campaign contributions to the significant undermining of public confidence in the judiciary. The ABA report cited a Texas Supreme Court Survey that found that 83 percent of Texas adults and 79 percent of attorneys believed that campaign contributions influenced judicial decisions “very significantly” or “fairly significantly.” The most compelling statistic was that 48 percent of judges indicated that campaign contributions had an impact on judicial decisions.

In addition to the ill effects on the public’s confidence, the influence of special interest money on judicial campaigns is pervasive. According to a 2001 article in Capitol Eye, the U.S. Chamber of Commerce spent nearly $7 million in five states to oppose judges who did not support its political agenda.

An elected judiciary is not the answer to perceived concerns the public may have about “judicial activism.” Life tenure allows our judges to make tough decisions and to uphold the constitutional rights of minority citizens in times of crisis. Life tenure cannot and must not be equated with non-accountability, however. A judiciary that is not held to certain standards will not withstand the pressure to change the system when the electorate is divided, as it is presently.

Our current challenge is to devise a system where judges with life tenure are fairly evaluated and are compelled to respond in a discernible way to change their behavior when it does not meet expected standards. This is not an easy task. I am confident, however, that with the collective wisdom and intellect of our judiciary and bar leaders that this delicate balance will be achieved.

Now is not the time for public bickering about judicial evaluations and judicial enhancement programs. Now is the time to work together to find a way to evaluate judges and to help them to work on perceived deficiencies while simultaneously fighting to preserve our independent judiciary.