A diverse panel discussed judicial independence and Supreme Judicial Court Chief Justice Margaret H. Marshall delivered her Annual Address to the Legal Community at the MBA’s Bench-Bar Symposium on Thursday, Nov. 30.
The Bench-Bar program, which had previously been part of the MBA’s Annual Conference but will now be a separate annual event, drew about 250 people to the John Adams Courthouse in Boston.
MBA President Mark D Mason explained the importance of protecting judicial independence in his opening remarks.
"My friends and colleagues, we come together not only to explore the critical role of the legal community in supporting and protecting a fair and impartial judiciary, but to reach an understanding of its importance to the commonwealth at large," he said. "A fair and impartial judiciary is at the cornerstone of our democracy."
Mason emphasized what is at stake in the battle over judicial independence.
"Nationally, the courts are under attack. Make no mistake about it, the debate over a fair and impartial judiciary is a debate over our values. We must protect the ideal that our judiciary is fair and impartial. We are all responsible for guaranteeing access to justice," he said.
Both Mason and Marshall noted efforts underway to improve the public’s understanding of the role the judiciary plays, particularly by educating children and teenagers. Marshall delivered her "Annual Address," highlighting the progress the state’s court system has made this year.
Marshall also addressed the panel’s topic in her speech, saying that "There is nothing more fundamental to our constitutional democracy than our system of fair, judicial independence."
Referring to ballot initiatives in states like South Dakota, Colorado and Oregon that proposed changes ranging from imposing term limits on judges to abolishing judicial immunity and allowing indictments for issuing "offending opinions," Marshall said: "We note with concern national developments that have spurred this Bar Association to focus this afternoon’s panel on protecting the independence of the judiciary."
The panel spent much of its time discussing the best ways to preserve a fair and impartial judiciary.
Moderator and communications strategist Edward H. Lazarus began his speech decrying news coverage of the Supreme Court case involving several states’ suit against the Environmental Protection Agency over greenhouse gas restrictions.
"This story is not being covered as a matter of law," he said. "It’s being covered as a matter of politics," he said. "The media typically doesn’t see the need to cover substantive legal issues" but cannot do enough stories exposing "activist" judges.
And that is a huge problem, he said. "If the public sees the judiciary as too political, how can it have faith in its judiciary?"
The legal community, Lazarus said, needs to find a "simple and direct" message to convey, then convey it repeatedly in clear language.
William K. Weisenberg, the assistant executive director of public affairs and governmental relations for the Ohio State Bar Association, and a member of the American Bar Association’s Standing Committee on Judicial Independence, said that courts rely on the public’s respect for the system, and the credibility of judges and the courts is under constant criticism.
"We need to marshal an army in this country," he said, to educate the public. "They’re getting their information from everywhere except us."
And it’s imperative, he said, that lawyers and judges not use legalese when talking to the public because most people don’t understand.
"We’ve talked in code among ourselves for so long that we’ve forgotten how to speak English," he said.
WBUR-FM General Manager Paul La Camera said that, unfortunately, the strain on the financial resources of the media limits the amount of coverage devoted to the courts and legal issues. While some news organizations, such as National Public Radio, the New York Times and the Washington Post will continue to cover legal issues thoroughly, most media outlets are pulling back.
"There’s been a significant reduction in resources for covering the courts, and the courts weren’t a priority to begin with," La Camera said.
MBA Past President Edward P. Ryan Jr., who is the MBA’s Committee on Judicial Independence chair, has appeared on cable news programs like "The O’Reilly Factor" to rebut attacks on judges.
"You counter the worst attacks immediately," he said. "It’s very difficult, but it’s important that we do it. You have to understand that there is an agenda here."
Ryan said that he believes the overwhelming majority of judges in Massachusetts are very good at their jobs. But he criticized attorneys who complain about bad judges and don’t fill out either the state’s or the MBA’s anonymous judicial evaluation forms. He also challenged the states good judges to speak up against the handful of judges who are damaging judge’s reputations overall.
David L. Yas, Massachusetts Lawyers Weekly publisher and editor-in-chief, said that the media is becoming a more powerful player in shaping public perceptions about judges and the legal profession, and those depictions are rarely favorable.
"There is a wave, and a disturbing wave" of attacks on judges, Yas said. "I’m afraid we might be fighting a losing battle."
In an effort to combat negative public perception, Yas explained that Lawyers Weekly will be publishing individual judicial evaluations, a controversial decision given a general reluctance to reveal anything other than overall satisfaction.
"We believe judicial evaluations are a wonderful thing, but that they should be made public. We are going to be careful with this information, very careful. But much of this information is very positive. We think it’s important to make it public in the name of accountability."
MBA General Counsel Martin W. Healy agreed that attacks on the judiciary have picked up momentum, pointing out the fathers’ rights advocates who protested at the MBA’s Family Law Conference in October.
"The level of threats by disgruntled interests has certainly risen," Healy said.
And legislatively, Healy said he’s quite concerned about proposals to limit judges’ terms.
There was also discussion about the influence that money has on the public’s perception of the judiciary, particularly in states where judges are elected and have to campaign.
"The influence of money, and lots of money, affects people’s opinions of justice," Weisenberg said. "Getting money out of the system is imperative if the public is going to trust the independence of the justice system."
Mason said he expects to see more attention paid to protecting judicial independence.
"Today’s symposium is the catalyst for future, smaller forums on fair and impartial courts and other issues central to the effective administration of justice in the commonwealth," he said.