Judicial Accountability - 8 Principles of the Judiciary
( from Justice in Jeopardy, a 2003 report by the American Bar Association’s Standing Committee on Judicial Independence, pages 34-40. For full text, see our NCPE website under the link to ‘Judicial Accountability’).
Principle 1: Judges should uphold the rule of law.
In our system of government, “we the people” ordain, establish, and, in so doing, consent to be governed by organic laws known as constitutions. The U.S. and state constitutions structure the federal and state governments and enumerate the rights of the people that the government must respect. Those constitutions have structured our governments as representative democratic republics, in which the people elect representatives to make and execute statutory laws that govern them. Representative democratic republics depend for their success upon the rule of law in two critical respects. First, the rules of law that the people’s representatives have embodied in statutes will serve their purpose only if they are honored through observance and enforced when they are broken. Second, those who make and implement the statutory law must respect both the limits on their own power and the rights of the people as required by the higher law of the constitution. The all-important task of upholding the rule of law by determining what the constitutional and statutory law requires and bringing it to bear in individual cases is one that our constitutions have delegated to judges. When constitutional or statutory law supports the position of an unpopular litigant or group, judges are required to uphold the law in favor of the minority, despite majority opposition. Thus, Adams was not overstating his point by declaring that if the “rights of every individual” are to be protected, it is “essential” that judges be willing and able to interpret and uphold the laws preserving those rights. To say that judges should uphold the rules of law that the people and the political branches make warrants qualification. Under the common law, for instance, judges remain responsible for lawmaking. More importantly, the notion that constitutional or statutory law is sufficiently fixed and clear that judges can invariably divine its meaning uninfluenced by their personal or political experience is increasingly unrealistic. However, one can concede that constitutional and statutory law is sometimes subject to differing interpretations and still recognize that ambiguous law is nonetheless law, which judges have a duty to interpret and uphold. Indeed, it is ambiguity in the law and its application to specific cases that makes judges indispensable to the operation of government and the ultimate triumph of the rule of law.
Principle 2: Judges should be independent.
Governors and legislators are not expected to be independent of the people; to the contrary, these officials are expected to represent their respective constituencies by acting on the policy preferences of those who elected them. Judges, however, are different. Once voters’ policy preferences are enacted into rules of law, it is up to judges to ensure that those rules of law are faithfully interpreted and upheld — an all but impossible task if judges are subject to the influence of threats, favors or constituencies that could endanger their unbiased judgment. Put another way, the rule of law would be corrupted if interest groups, public officials, powerful private citizens, or fleeting majorities of the public could intimidate a judge into interpreting a law to their liking or reading a law out of existence altogether. Unlike governors and legislators, judges must be, as John Adams urged us, as “independent as the lot of humanity will admit.” Although Adams extolled the virtues of judicial independence generally, it is possible to subdivide judicial independence into two distinct forms, both of which are instrumental to upholding the rule of law. First, judges must be independent enough individually to resist external efforts to influence inappropriately their decision making. In this regard, it is essential that a judge’s interpretations and applications of law be controlled by what she construes the law to mean, and not by what others would coerce or cajole her into saying it means. Second, judges must be independent enough collectively as a branch to resist institutional encroachments from the other branches of government that could place the judiciary—and the decisions its judges make—under the control of a political branch. On this point, the adequacy of judicial salaries, budgets, and working relationships with the other branches of government, among other concerns, may be critical to the judiciary’s capacity to preserve its strength and institutional integrity. In sum, it is important that judges and the judiciary possess decision-making and institutional independence.
Principle 3: Judges should be impartial.
A primary goal of judicial independence, as Adams recognized, is “impartial interpretation of the laws.” Judges occupy the role of umpires in an adversarial system of justice; their credibility turns on their neutrality. To preserve their neutrality, they must neither prejudge matters that come before them, nor harbor bias for or against parties in those matters. They must, in short, be impartial if we are to be governed by the rule of law rather than judicial whim. Judicial independence is necessary but alone may be insufficient to ensure impartiality. It is necessary because a judge who is not independent may be unable to remain impartial. If he is subject to external manipulation or control of his decision making, he may lack the capacity to be or remain open-minded and unbiased. Independence alone, however, is insufficient, because independence provides no guarantee of impartiality; a judge can be entirely independent but nonetheless biased and closed-minded. If independence alone is not enough to assure impartiality, the question becomes, What more is necessary?
Principle 4: Judges should possess the appropriate temperament and character.
If judges are to be impartial, they must not only be independent but also possess the appropriate judicial temperament. They must be committed to the rule of law. They must be women and men of integrity, who are evenhanded, open-minded, and unyielding to the influence of personal bias. They must be strong-minded and tolerant of criticism, yet resistant to intimidation. Then, and only then, can we be certain that an independent judge will be a truly impartial judge.
Principle 5: Judges should possess the appropriate capabilities and credentials.
Up to this point in the discussion, the focus has been on those principles that will assist in discouraging judges from consciously ignoring the rule of law because they are less than independent, are less than impartial, or lack the necessary judicial character or temperament. All of this assumes, however, that the judge is capable of ascertaining what the law is and how it should be enforced on a case-by-case basis. For this to be a safe assumption, however, the judge must possess the requisite intelligence, legal training, and experience. The relevance of judicial temperament, character, capabilities, and credentials underscores the importance of the relationship between judicial selection and the rule of law. Judicial systems can and should be structured to provide judges and the judiciary with institutional and decision-making independence. But independent judges may not be impartial judges who will uphold the rule of law unless the pool from which their selection is made is carefully limited to those who possess the necessary temperament, character, capabilities, and credentials. That, in turn, may underscore the role that independent, deliberative bodies can and should play in defining the pool from which judicial candidates are elected or appointed.
Principle 6: Judges and the judiciary should have the confidence of the public.
The first five principles focus on those attributes needed to enable judges to uphold the rule of law. Even if judges follow the rule of law admirably and to the letter, however, it is also important that the public perceives them as doing so. When it comes to judges and the judiciary, appearances matter. That is why Canon 2 of the Model Code of Judicial Conduct declares that “a judge shall avoid . . . the appearance of impropriety in all of the judge’s activities,” and specifies in Canon 2(A), that a judge “shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” And that is why, in the federal system, judges must recuse themselves not only when the judge “has a personal bias or prejudice concerning a party,” but also when a judge’s “impartiality might reasonably be questioned.” Appearances matter because the public’s perception of how the courts are performing affects the extent of its confidence in its judicial system. And public confidence in the judicial system matters a great deal for at least two reasons. First, and perhaps foremost, public confidence in our judicial system is an end in itself. A government of the people, by the people, and for the people rises or falls with the will and consent of the governed. The public will not support institutions in which they have no confidence. The need for public support and confidence is all the more critical for the judicial branch, which by virtue of its independence is less directly accountable to the electorate and, thus, perhaps more vulnerable to public suspicion. Second, public confidence in the courts is a means to the end of preserving an independent judiciary. If the public loses its faith in a judiciary it perceives to have run amok, the obvious solution will be to bring the judiciary under greater popular control to the ultimate detriment of judicial independence and the rule of law that judicial independence makes possible. The importance of public confidence in the courts is difficult to overstate. The ability of the courts to serve their purpose in a constitutional democratic republic turns on the public’s acceptance and support. Without it, an otherwise sound judiciary cannot long endure.
Principle 7: The judicial system should be racially diverse and reflective of the society it serves.
Principle 7 follows naturally from Principle 6. The courts are required to protect all the people, and not just popular majorities, and, for that reason, an assessment of the extent of public confidence in the courts must go beyond cursory reviews of general public opinion surveys. If certain segments of the public—defined along racial, ethnic, economic, or other lines—do not share the majority’s faith in the judiciary, it is a problem that must be addressed. Principle 5 underscored the importance of a judge’s qualifications and credentials, while Principle 6 emphasized the need for public trust and confidence in the judicial system. Given the need for promoting public confidence in the judiciary within segments of the community that have become increasingly suspicious of the courts, efforts to diversify the bench may fairly be regarded as a qualifications issue, as well as one germane to promoting public confidence. A multitude of witnesses testified before the Commission as to the relationship between the need for greater racial and ethnic diversity in the justice system and the institutional legitimacy of that system. For instance, polling data that reflect dramatically lower levels of public confidence in the courts among African American citizens signal a very serious problem that will only get more acute as our population becomes increasingly diverse, unless something is done about it now.4 [4National Center for State Courts, How the Public Views the State Courts: A 1999 National Survey, at 7 ].
For these reasons, the Commission has devoted considerable attention to this issue. Much of what the Commission has said with respect to diversification of the judiciary along racial and ethnic lines applies to gender and other aspects of diversity as well. The battle to diversify the judiciary along gender and other lines is likewise tied to the institutional legitimacy of our courts, and we would be remiss not to call attention to it. For example, state and federal courts have commissioned gender bias studies that reveal serious issues with respect to the manner in which female lawyers, witnesses, jurors and court personnel have been treated by judges, lawyers and court staffs.5 [5The Unfinished Agenda: Women and the Legal Profession, American Bar Association Commission on Women in the Profession, 7 (2001).] While women are achieving greater entry into the ranks of the bench and bar, much improvement is still needed to ensure that women are appropriately represented at all levels of the justice system. As women continue to gain ground within the justice system generally and the judicial system in particular, the watchword must be vigilance, not complacency, to ensure that progress toward greater diversity continues. We are becoming a more and more diverse people. Our judiciary and the judicial system (including judges, clerks, staff, lawyers, and juries) should reflect the diversity of the society in which we live. If they do not, the legitimacy of the courts and the judicial system will be called into question with increasing frequency.6
Principle 8: Judges should be constrained to performtheir duties in a manner that justifiespublic faith and confidence in the courts.
Judicial independence has its limits. While we do not want judges to be dependent on any individual or group that might impair their capacity to apply the law fairly and without favoritism, neither do we want judges to exercise power arbitrarily. The judge who acts arbitrarily undermines both the rule of law and the public’s confidence in the judicial system. Judicial independence, then, must be tempered by judicial accountability. We are mindful that the phrase “judicial accountability” is subject to misuse. It can be employed in the service of those who would, in the name of “judicial accountability,” obliterate judicial independence and the rule of law altogether by intimidating judges into contorting the law to reach results that are popular with temporary majorities of the public. In our view, however, accountability should be defined more narrowly, to serve the principles of a good judicial system that we enumerate here. Principle 1, for example, declares that judges should uphold the rule of law; those who do not should be accountable to an appellate process that corrects judicial error. Principle 2 declares that judges should be independent; those who compromise their independence by taking bribes should be held accountable to criminal and impeachment processes. Principle 3 declares that judges should be impartial; judges who exhibit bias in individual cases should be held accountable to a recusal process. Principles 4 and 5 declare that judges should maintain the appropriate temperament and competence; if they do not, they should be accountable to a disciplinary process. Taken together, then, these processes for promoting this eighth principle of accountability advance the goals of principles 1 through 5. At least as important, if not more, these processes will further the cause of Principles 6: enhancing public confidence in the courts.
