Friday, 13 November 2009

State of Judicial Independence - US

"We as lawyers and judges also believe something that is sometimes harder for a person who is not a lawyer or a judge to understand—that strong judicial institutions depend upon judicial independence. What we mean by judicial independence is an assurance that the judge will never respond to what used to happen in some countries: the telephone call from the party boss in the middle of the night—“telephone justice”—telling the judge how to decide the case.

The assurance of judicial independence has many features. It depends in part upon a length of service not subject to the will of a political official. There must be some security that salaries will not be diminished simply because a judge makes an unpopular decision. Judges must have adequate resources to do their jobs. Judicial independence also necessitates that judges’ decisions be totally open to criticism by the press, by legislators, and by the public. There must be an assurance that the judge is honest; this involves frequent public scrutiny of the judge’s financial affairs. It may make us uncomfortable to file the disclosure forms, but it is necessary.

Judicial independence also means that a judicial institution is functioning fairly, honestly, and effectively at a cost that people can afford; after all, the courts are simply a means to an end. We must keep in mind that judicial independence is a means toward a strong judicial institution. The strong judicial institution is a means toward securing the basic goals of people: human liberty and a reasonable level of prosperity.

Legislative control of the judiciary’s funding is only one difficult aspect of the issue of judicial independence. Legislators adopt the statutes creating the judiciary and they appropriate its budget; in addition, of course, the laws enacted by the legislature are continuously interpreted by judges. It is not surprising, then, that legislators sometimes ask, “Why do you judges ask me to vote the money for your institution but not try to exercise any control over that institution?” The judges respond, “Because that is what judicial independence means.” The relationship between legitimate oversight and illegitimate control, however, is a little more complex than that. It is a difficult task to define the limits that govern the relationship between the legislator and the judge in a system of government that simultaneously requires democratic accountability and judicial independence."

: Law and COntemporary Problems, Vol. 61, No. 3, 1998

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