Federal Judges, Federalist Society, Patricia Wald, Politics, Senate Judiciary Committee, State Judges

From the Belly of the Beast: Eating Judicial Independence for Lunch

One highlight of this year’s Federalist Society National Lawyers Convention was the annual convention luncheon, held on Saturday, November 17. During the luncheon, a panel of distinguished judges addressed the very hot topic of judicial independence. The panelists:

Judge Carlos T. Bea (Ninth Circuit),
Chief Judge Danny J. Boggs (Sixth Circuit)
Judge Timothy B. Dyk (Federal Circuit)
Judge Patricia M. Wald (D.C. Circuit) (retired)
Chief Judge Dennis G. Jacobs (Second Circuit) (moderator)

A quick recap of the discussion, after the jump.


Chief Judge Dennis Jacobs introduced the panel by referring back to Vice President Cheney’s address from the day before. Because of the rigorous security measures, audience members had to wait in an enormous line. Judge Jacobs commented:

“I saw a long line, so I got on the end of it. When I reached the front, I thought I’d be able to buy a PlayStation. But the vice-president’s talk was much more rewarding.”

Chief Judge Jacobs, a well-regarded jurist, struck us as a pretty cool guy. He’s an imposing man, tall and a little heavyset. But his voice is surprisingly high and reedy for someone of his size.
Chief Judge Danny Boggs spoke first among the panelists. As he has done before, he voiced doubts about whether judicial independence is truly under attack. He noted that “independence isn’t an end in itself, but a means to impartial adjudication.” He also questioned the conventional wisdom that a judge should never be impeached based on one of his or her decisions. Chief Judge Boggs essentially asked: If a judge defiantly issues a flagrantly improper decision, with no basis in law whatsoever, why shouldn’t he be impeached?
Judge Pat Wald began her remarks with a humorous quip: “When I first got this invitation, I feared I’d be like Eleanor Clift on The McLaughlin Group! Happily that has turned out not to be the case.” She expressed more concern about threats to judicial independence than Chief Judge Boggs, noting that some recent attacks on judges have been nastily ad hominem. While some of this tonal shift may be a function of greater political polarization generally, it is a development that needs to be monitored, she said.
Judge Carlos Bea, an elegant man with strikingly white hair, was closer to Chief Judge Boggs than to Judge Wald. He noted that ballot initiatives attacking judicial independence were all soundly defeated in the recent midterm elections, and he suggested that Justice Sandra Day O’Connor may be “a little touchy” about public criticism of the courts. Personal threats against judges are less serious than they have been during some periods in the past, and jurisdiction stripping — Congress depriving the courts of the ability to hear certain types of cases — has been around for decades (and has been deployed for both liberal and conservative ends).
Judge Bea noted that judicial independence is a much greater concern for state court judges, many of whom must run for election — and mount expensive campaigns in order to win office. Their independence can be compromised more easily because they often accept large campaign contributions from lawyers who may someday appear before them.
Judge Dyk’s main point was that judicial independence is most seriously threatened when the problem in question requires the judiciary to rely upon the other two branches of government for protection (as opposed to a problem the judiciary can address itself). He pointed out the diminishment of financial resources for the court system, by Congress, and the refusal to enforce judicial decrees, by the executive, as two possible (hypothetical) examples.
Then came the question-and-answer session. The panel was asked about whether the current, highly contentious nomination and confirmation process poses a threat to judicial independence. Here were their reactions (paraphrased):
Judge Boggs: Nah, not really. Once you’re confirmed, you can do whatever you please!
Judge Wald: It could be a threat if the judge is forced to commit to a particular position on an issue in order to get cofnirmed.
Judge Boggs: Nah, not really. Once confirmed, the judge can say, “Guess what? I lied!”
Judge Wald: Well that wouldn’t be very nice.
Judge Bea: The notion that the brutal confirmation process is deterring good people from seeking federal judicial appointment is dubious. If you’ve been through a state judicial election, as I have, a Senate confirmation hearing is a walk in the park.
We then asked the panel for their views on the “personalization of the judiciary” — seeing judges as real people, not as machine-like dispensers of judicial opinions — and whether this trend might threaten judicial independence.
Chief Judge Boggs took our question. He pointed out, quite rightly, that the federal bench has long been stocked with colorful characters. To name just a few examples, Justice Brandeis, Justice Holmes, and Chief Justice Warren were all “strong personalities.”
He suggested that the personalization of the judiciary may simply be a function of the greater personalization of society generally. He noted, only half-jokingly, that these days the Washington Post’s Style section may be more important than its hard news.
Finally, Chief Judge Boggs concluded that while this trend of personalization could be “distressing in individual cases,” with respect to individual judges having their privacy invaded, it does not present a threat to judicial independence generally.
We were glad to hear Chief Judge Boggs’s views. So we will continue in our mission to get underneath the robes of our nation’s leading judges. Onward, Article III groupies!

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