Michael S. Greco
President-Elect Nominee, American Bar Association
The Stanley Lecture
Connecticut Judges Institute
Quinnipiac Law School
Hamden, Connecticut - June 17, 2004
“The Role of the Judge at the Dawn of the 21st Century: A Lawyer’s Perspective”
It is a pleasure for me, as a Massachusetts lawyer, and an American Bar
Association officer, to be with you at this meeting of the Connecticut Judges Institute.
The rich history of the American Bar Association has its roots here in
Connecticut.
Simeon E. Baldwin, a member of the Connecticut Bar Association, is widely
credited as the founder of the ABA. In 1878 he proposed to the Connecticut Bar
Association the formation of a national bar association, and on his motion a committee
of three was appointed to explore the possibility.
That committee consisted of three prominent Connecticut lawyers – Richard D.
Hubbard, then Governor of Connecticut, Simeon Baldwin, then on the faculty of Yale
Law School, and William Hamersley, who later became a justice on the Connecticut
Supreme Court.
About 100 lawyers from 21 states met on August 21, 1878, in Saratoga Springs,
NY, to discuss the feasibility of the idea. The American Bar Association was born at
that meeting. Simeon Baldwin, who in 1893 was appointed to the Connecticut Supreme
Court of Errors, and became Chief Justice in 1907, served as president of the ABA from
1890-1891. I will be honored to follow in his footsteps, and those of 127 other
predecessors, when I become president of the association in August 2005.
It is particularly appropriate for me to be here today to discuss the challenges
that today face the judiciary, because Connecticut has been preparing leaders for
challenges in the legal profession longer than any other state in the union, and early on
helped to shape the judiciary of the young nation.
Tapping Reeve, a resident of Litchfield, first began formal institutional instruction
in the law in 1784. His law school revolutionized the method of instruction in the study
of law. The school’s early graduates included John C. Calhoun, Aaron Burr, Horace
Mann, Oliver Wolcott, Jr., and Noah Webster.
Oliver Ellsworth, while serving as a U.S. Senator from Connecticut on the
Judiciary Committee, was principal author of the Judiciary Act of 1789. He was also the
first Connecticut lawyer to serve as Chief Justice of the US Supreme Court, and was the
nation’s third Chief Justice, immediately preceding John Marshall.
This morning I want to address what I believe to be the role of the judge in these
times of unprecedented challenge for our nation and the judiciary.
As a member of the bar and citizen, I have great respect for the judiciary, and an
abiding interest in its role in our democracy. During my 32 years at the bar I have been
involved with the judiciary in various contexts: as a trial lawyer in state and federal
courts; as a member for eight years of the Massachusetts (Republican) Governor’s
State Court Judicial Nominating Council, which assisted the governor in making several
hundred merit-based judicial appointments; as a member of U.S. Senators Kennedy
and Kerry’s Federal Court Judicial Selection Commission, which recommended the five
new Massachusetts federal district judges confirmed in 1993; and as member for three
years and then chair of the ABA Standing Committee on Federal Judiciary, which
evaluates the qualifications of the President’s federal court nominees.
Two years ago I also chaired the ABA’s Task Force on State Judicial Selection
and Campaigns, which studied judicial elections in the 38 states that elect their judges.
The Task Force documented the effect on the public’s trust and confidence in judges
resulting from negative and shocking campaign advertising; from unprecedented
spending by judicial candidates; and from unprecedented spending by interest groups
such as chambers of commerce and associations of trial lawyers.
As you may know, the ABA has no Political Action Committee or PAC, and the
ABA neither nominates nor supports judicial or political candidates.
The mounting pressures on the judiciary from various quarters, and the
insufficient and progressively decreasing resources being provided by legislatures to the
judiciary throughout the country to serve justice, give me serious concern. Later in
these remarks I will indicate what the American Bar Association is doing to address
some of these pressures and challenges.
As members of the judiciary, you no doubt recognize the importance of an
independent and impartial judicial branch. The judiciary helped to shape the foundation
and then the direction of our country by maintaining an unwavering commitment to the
Rule of Law, and to the principles of an independent judiciary. Yet, throughout our
nation’s history, challenges to the independence of the judiciary have threatened to
weaken the vital role that the courts have in our republican system of government.
Those challenges have never been more serious than they are today.
Judicial independence is the bedrock principle of our democratic republic.
Judicial independence provides for a judiciary free from partisan influences --- a
judiciary that impartially and fairly applies the facts of a case to the applicable law. Our
country’s Founding Fathers created a system of government unique in its design and
devoted to protecting the rights and liberties of all.
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Each of the three branches has specific duties and responsibilities, and a
system of checks and balances was created to ensure that no single branch would
dominate the government. Clearly, the crucial part of this governmental structure is an
independent judiciary.
John Adams, distinguished Boston lawyer, a founder of our democratic form of
government, and later our second president, drafted the Massachusetts Constitution,
which in turn served as the basis for our federal constitution. Adams clearly recognized
the vital role that an independent judiciary has in our democracy when he wrote that
democracy depends on an “able and impartial administration of justice,” and on a
judiciary that is “subservient to none.” That notion is embedded in the Massachusetts
Constitution in the following clause:
It is essential to the preservation of rights of every individual, his life, liberty,
property and character, that there be an impartial interpretation of the laws, and
administration of justice. It is the right of every citizen to be tried by judges as
free, impartial and independent as the lot of humanity will admit.
The Rule of Law is another bedrock of our government. It allows all citizens to
enjoy the liberty and freedoms guaranteed by our state and federal constitutions, and
protects against tyranny of the majority. By interpreting state and federal constitutions,
the judicial branch checks the will of the legislature, and the excesses of the executive,
to ensure that all citizens, whether part of the majority or not, are allowed equal access
to all the rights and liberties guaranteed them by the constitution.
A judge’s impartiality and ability to interpret and apply the laws fairly are integral
to the administration of justice.
Without judicial independence, there can be no protection of individual rights.
Without judicial independence, there can be no safe harbor for the oppressed --the minority.
Without judicial independence, there can be no check on government leaders or
corporate actors.
Without judicial independence there would be no democracy.
Our laws --- laws that are meant to protect everyone --- the rich and the poor, the
majority and the minority, the powerful and the powerless --- can only function if the
judicial system is independent, impartial and, equally important in my view, courageous.
Speaking on the importance of impartiality in a judge, Chief Justice Rehnquist
has said, “A judge is bound to decide each case fairly, in accord with the relevant facts
and the applicable law, even when the decision is not the one the home crowd wants.”
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Worrying about the reaction of the “home crowd” compromises both impartiality and
integrity in a judge.
Retired Massachusetts Supreme Judicial Court Chief Justice Edward F.
Hennessey, commenting on Chief Justice Rehnquist’s notion, has observed that the
“home crowd” can take many forms: “it may be the clamor of the news media, or the
noise of pressure groups. In states that elect their judges, it may be the expectation of
a lawyer who has contributed to the judge’s election fund.”
In states that elect judges, the “home crowd” certainly includes the voters, who
can vote a judge out of office for rendering an unpopular decision. Only the judge
himself or herself can ensure, as a matter of personal conscience, and the ethical and
sacred responsibilities of the judicial office, that impartiality has prevailed over concern
about the “home crowd’s” reaction.
Justice Oliver Wendell Holmes spoke in these terms about the importance of
courage in a judge, and the judge’s pursuit of truth:
I get letters, not always anonymous, intimating that we are corrupt. Well,
gentlemen, I admit that it makes my heart ache. It is very painful when
one spends all the energies of one’s soul in trying to do good work, with
no thought but that of solving a problem according to the rules by which
one is bound, to know that many see sinister motives and would be glad to
find evidence that one was consciously bad. But we must take such
things philosophically and try to see what we can learn from the hatred
and distrust, and whether behind them there may not be some germ of
inarticulate truth.
Such self-evaluation is healthy, to be sure, and it should be an on-going process
for judges, as well as lawyers. But in the end it should not serve to hinder or overcome
the judge’s self-confidence that he or she has discharged his or her obligation, in Chief
Justice Rehnquist’s words, “to decide the case fairly, in accord with the relevant facts
and the applicable law.”
As the U.S. Supreme Court observed in Chambers v. Florida, courts serve as
“havens of refuge for those who might otherwise suffer because they are helpless,
weak, outnumbered or because they are nonconforming victims of prejudice and public
excitement.”
Day in and day out, judges in our country – over 25,000 in the state court system
alone – hear hundreds and even thousands of cases. And each day courageous judges
throughout our judicial system uphold the Rule of Law and administer justice, even
when the law itself is unpopular, or the facts shock the public, or the case is notorious.
It takes a judiciary comprised of strong, courageous and independent judges to
maintain the Rule of Law while also maintaining the “home crowd’s” respect for the
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administration of justice. But it is the solemn obligation of each judge, to the people
and to our democracy, to do just that.
During the Civil Rights era in this country, federal district judges issued school
desegregation orders, ordered police protection for protestors, and worked to curb racial
discrimination in the jury process, to name just a few issues. These tireless judges,
dubbed the “58 Lonely Men” in Jack Peltason’s seminal book, enforced civil rights
legislation at great personal peril. Their dedication to the Rule of Law, even at personal
cost or harm, is an inspiring example to all who wear the judicial robe.
This year marks the historic fiftieth anniversary of Brown v. Board of Education of
Topeka, Kansas. That landmark case overturned the concept of “separate but equal”
and paved the way for eliminating all forms of state-sponsored segregation in public
facilities, from schools to buses. The Civil Rights battles were rife with protests, dissent,
and assassination. Yet the courts, through a series of important decisions, stayed the
course and continued to apply the Rule of Law, without falling prey to the cries of
popular protest.
In 1985, while serving as president of the Massachusetts Bar Association, I was
honored to present the President’s Award to a courageous federal district judge, W.
Arthur Garrity, Jr., who decided and then for many years monitored the Boston schools
desegregation case. The judge and I lived in the same town, Wellesley, and rode the
same commuter train daily, during the tumultuous early 1970’s when he presided over
that case. At the time I was a young lawyer, recently admitted to the bar.
I remember seeing Judge Garrity on the commuter train most mornings, knowing
that his home was under 24-hour protection. I remember watching the Judge as he
read the Boston Globe on the train, along with the rest of us, all of us reading on the
Globe’s front page lead stories helpfully informing Judge Garrity as to how he would rule
on this or that matter that day in the trial (in case he were in doubt as to what he was to
do).
But most of all, I recall the calmness of Judge Garrity, his resolve, and the
courage that he displayed under immense pressure both during and after the trial. The
“home crowd” then was decidedly hostile. Judge Garrity never showed publicly any
effects of that hostility towards him. His courage never wavered. His positive influence
on public school education for all children in the city of Boston is his enduring legacy. It
was for those reasons that the Massachusetts Bar Association presented the
President’s Award to Judge Garrity.
The issue of “separate but equal” continues today in my hometown of Boston,
where our Supreme Judicial Court has come under great pressure from segments of the
public, our governor, and even the President of the United States regarding the Court’s
interpretation of the Massachusetts Constitution with respect to the rights of gay men
and women to marry.
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Those opponents of the Court’s decision – part of today’s “home crowd” -- have
decried the Court’s purported “judicial activism,” and some have even demanded the
impeachment of the four Justices who ruled in the 4-3 majority.
The Massachusetts Legislature, meeting in Constitutional Convention,
considered amendments to the constitution relating not only to marriage, but also
calling, ill-advisedly in my view, for the election of judges, so that judges in the future
would be more accountable to the will of the public when they render unpopular
decisions. The controversy continues to rage in Massachusetts – and rage is the
operative word.
Rage from the business community towards that dreaded “judicial activism” – a
phrase that appears intended to connote a medical disorder as well as legal disorder –
can be seen in the aggressive campaign now being waged by the U.S. Chamber of
Commerce against judges and lawyers. In recent newspaper ads and its website, the
Chamber attacks the legal system, and “activist” judges, for “abuses of the class action
system” and the filing of “frivolous suits” that are “costly to business and consumers”.
The Chamber claims that an opinion poll, which it commissioned, reported that
such lawsuits allegedly cost the nation $809 per person each year. While that figure is
debunked by experts, in the last two state judicial election cycles the Chamber boasted
of its success, by spending millions of dollars in media ads, in influencing voters to elect
judges who will support the Chamber’s political agenda.
A 2001 ABA report on public confidence in the judiciary in states where judges
are elected indicated that such ads – especially on television – are causing great harm
to the public’s trust of judges.
For example, the report cited a Texas Supreme Court survey that found that 83
percent of Texas adults, and 79 percent of Texas lawyers, believed that judicial
campaign contributions influenced judicial decisions “very significantly” or “fairly
significantly”. Perhaps the most distressing statistic of all was that 48 percent of the
judges surveyed believed that campaign contributions influenced judicial decisions.
What of judicial impartiality? Judicial independence? The Rule of Law?
As many of you are aware, we recently marked the fortieth anniversary of
another very important judicial decision: Gideon v. Wainwright. The right to counsel in a
criminal trial was found to be fundamental in federal criminal proceedings as far back as
1932, yet it was not until 1963 that the US Supreme Court ruled that the right to counsel
guaranteed by the Sixth Amendment extends to all persons accused of crime.
Gideon exemplifies the concept that rights and liberties in this country are
afforded to all people, regardless of race, or wealth. And its importance was reinforced
by the fact that Abe Fortas, a leading lawyer in the country at the time, and later a US
Supreme Court Associate Justice, served as counsel, on a pro bono basis, for Clarence
Gideon. Today, we must continue our vigilance in assuring that every person has
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access to competent, effective assistance of counsel to protect constitutional rights. I
believe that our democracy depends on it.
Today we live in a world punctuated by acts of terror, in a country that is
struggling to balance national security and the protection of the civil liberties that have
defined us for the freedom-loving, and the freedom-hating, countries of the world.
Today’s acts of terror have analogues in our nation’s history – there were comparable
acts of terrorism, for example, during the American Revolution, the Civil War, and the
War of 1812 when the White House was evacuated and burned to the ground. The role
of the judiciary at such times of crisis in finding the reasonable constitutional balance is
crucial not only to the rights of those suspected of the acts of terrorism, but to the rights
of all American citizens, and to the survival of democracy.
The right to effective counsel today is under increased scrutiny as applied to
those individuals being detained by the Department of Homeland Security. Immigration
issues and the ability of the government to administer homeland security measures
challenge judges to balance fundamental rights with the necessity for the government to
protect its citizens. In times of national crisis, there is tremendous pressure on the
judiciary to give great deference to the executive branch.
Yet it is vitally important that we remember that the U.S. Constitution can handle
crisis and emergency. The last thing we in this country should do is signal to the world
that we do not have enough confidence in our democratic institutions – in our courts -to deal with the crisis of these times. To send that signal is to inflict on ourselves and
on our democracy the very harm – the lasting harm -- to our country that the terrorists
hope to accomplish.
Chief Justice Rehnquist last month addressed the American Law Institute annual
meeting in Washington, D.C., a meeting that I attended. I believe that his remarks have
relevance to the current treatment of enemy combatants by our government, and to the
war on terrorism in general.
The subject of the Chief Justice’s speech was the Nuremberg War Criminal Trials
in November 1945, following the end of World War II, and in particular the role of US
Supreme Court Associate Justice Robert H. Jackson in those proceedings.
You may recall that Justice Jackson took a controversial one-year leave of
absence from the Supreme Court, organized the Nuremberg Tribunal itself, and then
served as chief prosecutor in the trials of the twenty-two defendants. Of the twenty-two,
twelve were sentenced to hang, seven were imprisoned, and three were acquitted. It is
from Jackson’s opening statement to the Nurenberg Tribunal that Chief Justice
Rehnquist quoted.
In clear and eloquent prose Jackson spoke of the importance of ensuring that
each defendant, no matter how heinous the charges, receive a fair trial. He said this:
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The former high station of these defendants, the notoriety of their acts, and the
adaptability of their conduct to provoke retaliation, make it hard to distinguish
between the demand for a just and measured retribution, and the unthinking cry
for vengeance which arises from the anguish of war. It is our task, so far as
humanly possible, to draw the line between the two. We must never forget that
the record on which we judge these defendants today is the record on which
history will judge us tomorrow. To pass these defendants a poisoned chalice is
to put it to our own lips as well. We must summon such detachment and
intellectual integrity to our task that this trial will commend itself to posterity as
fulfilling humanity’s aspirations to do justice.
The American Bar Association’s policy positions to date on the use of military
tribunals, the treatment of “enemy combatants” and immigrants, and the war on
terrorism reflect the wisdom contained in those words, words that must continue to be
as operative today as they were in 1945. The ABA believes that Justice Jackson’s
phrase, “fulfilling humanity’s aspirations to do justice”, describes the over-arching
purpose of the Bill of Rights, which we must never allow to be compromised.
The people look to Congress and the Executive to ensure our national security.
But the people look to the Judiciary to ensure that those national security efforts do not
erode or destroy our constitutional rights. If the Judiciary abdicates its responsibility,
under the inevitable, constant, and strong pressure from the Executive Branch, our
freedoms suffer, and so does democracy.
In the words of John Adams, democracy depends on a judiciary that is
“subservient to none.” The Founders knew that they were building in tension among
the three branches of government in the new democracy they created, but they knew
also that it is that very tension that helps guarantee the checks and balances on which
democracy depends. As was the case during the Civil Rights era, judges must be
courageous, willing to uphold the Rule of Law and protect the rights of all citizens, and
fulfill “humanity’s aspirations to do justice.”
I believe that the greatest danger to democracy is not an overzealous Executive
branch, but a subservient Judicial branch. Each branch of government has a vital role
to play, and each was given a balancing power in our democracy. The balance is
broken when judges become passive or submissive, or when they too quickly yield their
powers of analysis, training, and responsibility to do justice, to another branch of
government that in its zealousness may be over-reaching or exceeding its constitutional
boundaries. The judiciary’s critical role, never more so than in post-September 11
America, is to prevent that over-reaching and those excesses of power.
Immigration issues, civil rights, criminal justice issues and environmental issues
are among the wide-ranging challenges that courts are called upon to resolve each day.
And in the dawn of this new century we are witnessing ever faster-advancing
communication and information technology, from e-commerce to e-litigation, and an
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increasingly globalized economy that increasingly will generate multinational disputes
and multinational judicial proceedings, making the judge’s work even more daunting.
And yet, judges, on both the state and federal level, now increasingly face a
whole series of procedural and resource obstacles that are negatively impacting their
ability to function independently and impartially. Many of these challenges threaten to
disrupt the basic purpose of the courts – to ensure that all citizens enjoy the liberties
and freedoms guaranteed by the constitution.
Examples of these obstacles abound.
Budget cuts have forced some states to close courthouses, limit hours of public
access, delay processing of all but the most serious criminal cases, lay off large
numbers of court employees, and eliminate innovative programs that help reduce
recidivism and chemical dependency.
Courts are being challenged to become more accessible to the public, whether
through providing more assistance for pro se litigants, making the courts more userfriendly, providing faster access to filings, forms and decisions, or providing access to
the courthouse for disabled persons. Often these changes must be implemented while
courts are fighting shrinking budgets, greater workloads, and less staff resources.
Lack of diversity in the courts feeds the perception that there are two systems of
justice emerging in the United States: one for the rich and powerful, and one for
everyone else.
Judicial disciplinary systems in some states are viewed as ineffectual,
contributing to a public perception that judges are unaccountable and untouchable.
Judicial selection systems, too, bring with them a host of issues. Roscoe Pound,
almost a century ago, gave an address to the American Bar Association Annual Meeting
in 1906 entitled “The Causes of Popular Dissatisfaction with the Administration of
Justice.” In this seminal speech, Pound warned that traditional respect for the bench
can be destroyed by the “putting of our courts into politics” and “compelling judges to
become politicians.”
These words of Dean Pound ring true today, just as they did a century ago, when
we consider the dangers of forcing judges to behave more like politicians – to adhere to
a political philosophy or ideology, to cater to a particular demographic, or to support a
particular viewpoint.
In states that elect judges, campaign costs and acrimony have skyrocketed.
Today it is commonplace for judicial candidates in a statewide race to raise and spend
more than a million dollars in campaign funds, which increasingly are being used to fuel
intensely negative media ads that have the effect of eroding public confidence and trust
in the integrity and fairness of our state courts. We know all too well from experiences
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in other parts of the world that when the people lose their trust of the courts, chaos
reigns and democracy dies.
As the principal representative of the legal profession in America, with more than
405,000 members, the ABA has always been, must always be, and we will be, vigilant
in our defense of the legal system, and in the defense of a strong and independent
judicial branch.
A primary goal of the ABA is the preservation of an independent judiciary. To
that end, the Association has worked tirelessly over the years to provide programs and
policies that address many of the challenges faced by today’s judiciary. I want to share
with you a few examples of ABA initiatives aimed at preserving and promoting judicial
independence.
Last year, the ABA released a report on the 21st Century Judiciary, entitled
“Justice in Jeopardy.” This report took a comprehensive look at state judicial systems –
including the 38 states where judges are elected -- and recommended a series of
improvements to foster an independent, impartial judiciary.
In direct response to the report, among a number of initiatives, the ABA
appointed a commission to evaluate the ABA Model Code of Judicial Conduct. The
commission, which is in the middle of a two-year comprehensive revision of the Code,
will consider a wide variety of issues, including whether problem-solving courts require
independent ethics provisions, how judicial campaign speech can be regulated, and
whether restrictions on a spouse’s political or business activities – from investments to
charitable and business activities – should lead to a judge’s recusal.
In addition, the ABA is looking closely at judicial compensation, on both the
federal and state level. The ABA has lobbied aggressively in Congress in support of
increased federal judicial pay and the necessity for regular cost-of-living-adjustments. A
report released recently by the ABA, in conjunction with the Federal Bar Association,
outlines the dramatic drop in buying power of federal judges that has resulted from
limited pay increases.
In addition, the ABA has sought to document the number of federal judges who
have left the bench due to economic concerns. We will continue to work with the
leadership in Congress and the Administration on efforts to secure better pay for the
federal judiciary. The Judicial Division of the ABA is also studying compensation issues
for the administrative law judiciary.
On the state level, the ABA Standing Committee on Judicial Independence has
made a series of recommendations to increase state judicial compensation, including
the creation of salary commissions. The ABA House of Delegates adopted policy last
August that urges states to remove politics from the process of setting state judicial
salaries by forming independent, broad-based commissions that have authority to
determine compensation levels for state judges.
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I am pleased to recognize that Connecticut in 1971 established a compensation
commission that makes recommendations for salaries on all levels of state government,
including the judiciary. This commission, though, serves only an advisory function, and
is appointed by only the legislative and executive branches.
The ABA policy, specific to judges, calls for these commissions to have the
independent authority to determine judicial salaries. In addition, the ABA policy urges
states to provide an opportunity for the judiciary to participate in the appointment of
members to these commissions. Salary commissions now exist in about twenty states,
but only a handful have true independent authority to set salaries.
In the recent past, Connecticut judicial salaries ranked in the top 25% nationally,
but the comparatively high cost of living in Connecticut reduced the buying power of
Superior Court judges’ salaries to a national rank of 39th among the states. It is
heartening that Connecticut judges have been granted a significant salary increase for
each of the three years starting January 2005. It is an important statement on the vital
role that judges have in our system of government. It is my hope that Connecticut’s
lead will be followed by other states.
At the ABA Annual Meeting last August, Supreme Court Justice Anthony
Kennedy forcefully and eloquently spoke out against mandatory minimum sentences
and sentencing guidelines, as well as racial disparity in our country’s prison population,
the conditions in prisons, the use of the pardon process, and the objectives of
incarceration. In addition, he focused on and derided the recent challenges to federal
judicial discretion.
In his remarks, Justice Kennedy challenged the organized bar to suggest
reforms. The ABA quickly responded to his challenge, and we will issue a report at our
upcoming August 2004 annual meeting in Atlanta. The ABA Standing Committee on
Federal Judicial Improvements has also agreed to take on a comprehensive plan to
provide public education resources on the importance of judicial independence in the
federal judiciary, and how challenges to federal judicial discretion impact the
administration of justice.
The ABA agrees with Justice Kennedy. The ABA believes that we need to give
judges a gavel, not a rubber stamp. Judges need to have discretion to rule on the
specific facts – and the humanity -- of a case. Again, I am mindful of John Adams’
exhortation in the Massachusetts Constitution, which served as the model for the US
Constitution, 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.”
Justice Kennedy has taken a courageous stand to speak out on criminal justice
issues that he finds troubling. We should all take to heart his directive to question the
benefits to our society from increased incarceration, and the disproportionate impact of
criminal sentencing on minority populations. We can never take for granted that the
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directives of Brown and Gideon, ensuring that the benefits of our constitution are
guaranteed to all citizens, will be respected without diligent oversight.
As I listened to Justice Kennedy’s speech as a member of the audience, I
admired the courage that he demonstrated in criticizing our criminal justice system, the
impact of mandatory sentencing on the administration of justice, the deplorable
conditions of our prison system, and those who bear the responsibility for creating and
solving these problems. He demonstrated classic judicial independence and courage in
making his remarks. Justice Kennedy did not just criticize. He offered suggestions,
and he challenged.
The ABA has taken up his challenge on behalf of the legal profession. So should
the executive branch, the legislative branch, and the judiciary. It will take all of us
together to fix what is so wrong in America’s criminal justice system. I believe, however,
that the judiciary can make an immediate and direct impact in addressing what needs to
be done, and in spurring the executive and legislative branches to discharge their
responsibilities.
Another serious threat to the judiciary today is the decline of trials, due largely on
the criminal side to sentencing guidelines and mandatory sentencing and the shift of
power or discretion from independent trial judges to prosecutors (the executive branch),
and on the civil side to the growth of ADR. Federal judges in Boston, like their
counterparts throughout the country, are very concerned about this trend, especially
with respect to jury trials, which has long-term implications for the judiciary, the
profession, and the justice system.
The ABA Litigation Section this year has funded groundbreaking research to
document the decline of trials in American courtrooms. The research shows, for
example, that the percentage of federal civil cases going to trial has dropped from
11.8% in 1962 to 1.8% in 2002. The ABA will continue to look closely at this subject in
the coming year, with the appointment of a blue-ribbon commission on jury trials.
Our judicial system, and our country, benefit from the active participation of
people from all walks of life. In order to acquaint more young people with the judicial
branch, the ABA Judicial Division, in collaboration with other ABA entities including the
Commission on Diversity in the Profession, sponsors a judicial-clerkship training
program. This flourishing initiative provides minority law students with the opportunity to
clerk for judges throughout the country. In turn, the judiciary is introduced to strong,
intelligent young men and women who are eager to pursue a career in law.
I encourage you to broaden your usual search for good law clerks. A clerkship
means a great deal in the development and advancement of young lawyers. I know
how much I have benefited from my clerkship in 1972 on the U.S. Second Circuit Court
of Appeals.
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Some of the most serious problems confronting our judicial systems today relate
to judicial selection and reselection. Judicial election campaigns at all levels are
increasingly focused on isolated issues of intense political interest. Even states where
judges are appointed are not immune from pressures to select judges along ideological
lines.
Nowhere is the tension between judicial independence and judicial accountability
more palpable than in the context of judicial selection. Although there is general
consensus that selection systems should preserve and promote independence and
accountability, determining how to strike that balance in a judicial selection system is
subject to intense debate.
The ABA strongly advocates for a commission-based appointive system to select
state judges. While reform efforts in the states have been stagnant for the past decade,
the ABA continues in its efforts to promote improvements to the judicial selection
system. In addition, the ABA supports the use of full public financing in states that elect
judges. And the ABA supports the creation of neutral, non-partisan bodies to evaluate
the qualifications of judicial candidates, regardless of the selection system employed in
the state.
Challenges to our courts are not unique to modern times. Simeon Baldwin,
Tapping Reeve, Roscoe Pound --- leaders in their respective legal communities --recognized the need to organize lawyers, to advocate on behalf of the profession, to
improve legal education, to adopt and update codes of professional conduct for lawyers
and judges, to help the profession grow, and to achieve improvements in the
administration of justice. It is our responsibility, as leaders in today’s legal community,
to find innovative solutions to the challenges that are now facing our judicial system.
I conclude with these thoughts.
The lawyers of America, and particularly the organized bar, must zealously
support the judiciary’s independence, and we must ensure that judges have adequate
compensation and resources to do their work. This responsibility of lawyers and the bar
has never been as pressing as it is at the dawn of this new century and we cannot, and
we will not, fail to discharge that responsibility.
The ABA believes that, because judges cannot defend themselves in the court of
public opinion, it is the lawyers who must speak out and support the judiciary when it is
attacked by interest groups or others unhappy with a particular decision.
Above all, we must celebrate judges who allow the Rule of Law to flourish in our
country when they demonstrate the courage to apply the law to the facts of the case,
and to administer justice efficiently and impartially.
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The greatest democracy the world has ever known continues to flourish only
because of the Rule of Law. And there would be no Rule of Law without an
independent judiciary and an independent legal profession.
I firmly believe, as John Adams recognized at the beginning of this nation, that
the viability of our republic depends on an independent and courageous judiciary that is
the equal of, and not subservient to, either Congress or the Executive.
And that, ladies and gentlemen, is the heavy constitutional responsibility that I
believe a judge must discharge at the dawn of the 21st Century in America.
Thank you for the opportunity to share my thoughts with you.
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