Judicial Independence and Accountability
Copyright (c) 2000 Burton Randall Hanson
"Judicial independence" and "judicial accountability" are nonidentical Siamese twins, joined at the heart, needing each other to survive. Judges who are not independent in fact, who have, for example, too close a relationship with political leaders, as has just been illustrated in Yugoslavia, lose the public trust, and rightly so. On the other hand, judges who are so independent that they stop being accountable, also lose the public trust, and rightly so. In this paper, relying upon Justice Oliver Wendell Holmes' dictum that we should "think things, not words," I try to go under or beyond the words themselves and critically examine the uses and misuses of the terms in recent public discourse by and concerning our supreme court. I criticize my opponent's heavy reliance on endorsements and/or contributions by politicians and lawyers, which I personally feel is just as inconsistent with "judicial independence" as relying on political party endorsements, something that is prohibited by a campaign ethical rule the judges of the supreme court, including my opponent, adopted. I also suggest that the court's recent "community outreach" efforts, championed by my opponent, constitute an inadequate substitute for real openness and accountability. Finally, I propose specific ways in which the court can strengthen itself as an institution by becoming truly open, responsive and accountable, as well as more efficient and effective in fulfilling its constitutional mandate.
I. Traditional openness and accountability; herein of its history and recent developments. Oral arguments have always been "open" to the public. No ticket is required. Admission is free. But, traditionally, relatively few people have attended. This was true when I started working at the court a number of years ago, when the great Oscar R. Knutson was chief justice and the court had chambers in the capitol. Occasionally a class of school kids showed up or some law students. If the case appealed happened to arise out of a sensational murder or if the control of one of the houses of the legislature was involved, then the press showed up. Typically, though, just the lawyers and litigants showed up. The court, as it had done pretty much from its beginning, without advertising itself, quietly and competently and with great integrity continued about its serious business, doing the often boring work of reading transcripts, listening to attorneys argue, discussing cases, writing opinions, overseeing the legal profession and the court system.
Eventually someone said television cameras should be allowed in the courtroom, and so the court agreed to allow television stations to record and/or transmit oral arguments, if proper arrangements were made. But oral arguments typically aren't exciting and so the television news people lost interest very quickly. (Of course, if the case appealed happens to arise out of a sensational murder or if a football stadium is involved, then the press shows up to get a few "visuals" and some possible "sound clips" for the evening "news" report.)
What happens if you put on a free "show," as the court always has done, and no one comes? Well, if it's yesterday and you're one of the old-style, traditional supreme court justices, someone who fills the office naturally, you're quite content just doing what a supreme court justice has always done, work hard deciding cases, leaving one's work, in Holmes' phrase, "unadvertised." Speeches? Well, a judge might give one or two a year. His high school alma mater might want him to give a commencement address, and he'd work hard at it. Or it might be the judge's turn to speak to the new attorneys at the swearing-in ceremony.
But what if it's today and, hypothetically, you are a supreme court judge who used to be in politics or private practice with lots of partners and your chambers are no longer in the capitol, with its hustle and bustle, but in a new high security fortress-style judicial building designed to keep the public at bay? What if, well, no one is paying much attention to you and you start to feel isolated, lonely? It could be you're not suited to be an appellate judge, but, no, that couldn't be. It must be that there's something wrong with the way appellate judges have traditionally worked. Maybe you ought to get out more, mingle with the public. Those old guys...well, times were different. This is "the '90's." Hey, maybe you ought to take the show on the road! -- This, of course, is a caricature, but even caricatures have value.
In any event, in fact the court in recent years has been increasingly "taking the show on the road" or, as some judges have put it, engaging in community "outreach." The court's first big move in the direction of this kind of "openness" or "outreach" was to hold oral arguments on actual cases away from the court's two courtrooms, the old one on the third floor of the capitol and the new one on the third floor of the Minnesota Judicial Center, across the street from the capitol. The court started doing this by holding oral arguments, once per school per year, at the three law schools.
Then someone got the idea of also holding court outstate at least once a year. This typically resulted in considerable -- I believe always favorable -- media publicity for the court in the locale, even in the region, in which the court held forth. The local paper typically would show a picture of the judges "in action" or, even better, a celebrity-style picture of one of the judges surrounded by school children attending the argument. One or more of the judges might be interviewed on television or radio.... Things went so well that once-a-year became twice-a-year.
And since there's no idea that can't be pushed to its logical, even foolish extreme, and since even justices are human and therefore take well to the idea of uncritical attention and acceptance, something few elected officials get, why not come up with some variations on the court's outstate "traveling dog-and-pony show" (as a justice of the more traditional mold humorously referred to it after retiring)? Why shouldn't individual justices start visiting schools, and not just occasionally but often? Why shouldn't individual justices make public appearances at community events? Why shouldn't individual justices give more speeches? Why not send court employees to the law firms -- well, at least the big ones -- to talk to the firm's attorneys about court procedures? Hey, some of the justices could even go on a three-day "spring tour" to some part of the state? Indeed, that term, "spring tour," actually is the term the court's public relations person or "court information officer" gave, presumably with approval, to the three-day swing of multiple appearances in southwestern Minnesota late this last spring by my opponent and one other court colleague who is facing opposition. And then, of course, there are numerous bar meetings, functions and conventions to attend both in Minnesota and outside of Minnesota, because it's important that the court maintain good relations with "the bar."
And so it has come to pass that our justices admittedly are making "hundreds" of "public appearances" around the state each year. (I can't document the extent of it. To do that, one would have to obtain the calendars and the timesheets and the travel-and-expense reimbursement request forms of each of the individual justices. One could do that using the "sunshine" or openness-in-government law, which the late Peter S. Popovich, one of the chief justices with whom I was privileged to work, championed. I am not doing that as part of my campaign, because a) I have no desire to embarrass any of the seven justices and b) I believe the justices, including my opponent, have been quite "open," quite proud, as is their right, of all the speeches and appearances they've been making.)
II. One candidate's perspective on the new openness. What should one make of this development? A lot depends upon one's perspective; a lot depends on one's view of the proper role of judges, particularly appellate justices; a lot depends on an assessment of things the judges are not doing but could and/or should be doing with their time; and so on.
All I'm going to do is speak straight ahead and give my sincerely-held experience-based opinions, as I promised I would do during the campaign:
First, I think that primary- and secondary-school teachers in Minnesota are quite capable, or should be, of teaching kids about our system of government. That is their job and there are lots of good resources available in their schools and communities to help them do their job. I think that given the high salaries of judges and their recurrent pleas that they are overburdened with work, that they need salary increases, that the legislature should fund more judgeships and more law clerks, etc. -- given all that, I think they should get back to basics and leave the teaching to the trained teachers.
Moreover, year after year, day after day, all spring and fall, one sees yellow busload after yellow busload from all around Minnesota blossom forth at the state capitol, filled with school kids, who spill out of them happily and fill the corridors of the capitol with their wonderful enthusiastic cacophony. When the court had its chambers at the capitol, the trained tour guides, as they still do, regularly brought kids into the old courtroom, told them about the court and the way the court works, and even let them sit behind the bench in the justices' chairs. All a judge had to do if he or she started feeling in need of being in the midst of "the people" was open the door and take a stroll. Perhaps the current justices, entombed alive in the fortress-style judicial center, need to open things up a bit there. If they aren't willing to do that, then perhaps they should simply take a walk over to the capitol occasionally and introduce themselves to some of the groups of kids and give them a personal tour.
Secondly, I apologize but I can't help but question the purpose of all these public appearances. I think I know the purpose. I don't think they really are primarily about being "open" in any other than a "lite" or superficial kind of way. Frankly, I think the appearances are what most public appearances by other public figures are -- "p.r.," pure and simple.
Not surprisingly, since fashionable ideas like this cross state lines as easily as viruses do, Minnesota is not the only state in which judges are doing this. These "outreach" programs have become the latest fad and are being promoted around the country primarily as a good way for courts to build public confidence in, and broad public support for, the court system. They are so "trendy" that a prominent former special prosecutor (and former federal judge) not noted for being "trendy" recently jumped on the bandwagon with apparent enthusiasm, urging all judges to do the same in a speech in June at the National Judicial College in Reno, Nevada. Specifically, he "urged judges to appear on television and use [emphasis supplied] all media to better inform people about the justice system." The need, as he expressed it, is to "explain" the judicial system in order to "dispel misunderstandings and overcome any misinformation or misimpression that may be there." In other words, or so I would argue he really was arguing, the people need to be set straight.
III. Does the new openness promote judicial independence? The support that the programs are designed to achieve ostensibly is the support that is needed a) to keep judges, as they put it so often these days, "independent" and b) to help judges, who don't control the "purse strings," get legislative appropriation of more money for the ever-increasing budgets. And who can quarrel with that without being "politically (or judicially) incorrect"? Well, I can and do.
I am as firm a believer in "judicial independence" as the next person. But some of my opponent's supporters who have been waving the flag of judicial independence so vigorously of late turn out to have a pretty narrow idea of what judicial independence is. And, I suggest, they have forgotten that the public's interest in judicial independence is, and always should be, in creative tension with the equally-weighty public interest in "judicial accountability," and I'm speaking of real accountability. In short, the two, independence and accountability, are two parts of an antinomy.
What is the underlying notion of judicial independence that some of my opponent's supporters seem to be supporting? It seems to be one that, without too much exaggeration, could be stated in "rule" and "corollary" form basically as follows:
Rule: Judicial independence is that which would be compromised if political parties endorsed judicial candidates because that would inject partisan politics into what is supposed to be a nonpartisan election.
Corollary: Judicial independence is that which is not compromised if individual politicians or lawyers publicly endorse and contribute money to the campaign of a sitting judge facing opposition or to the judge's opponent because:
1) when politicians from three parties all support the sitting judge or the judge's opponent, that is appropriate "tripartisan" support, which necessarily equates with "nonpartisan" support, and
2) when lawyers support and contribute money to the sitting judge or the judge's opponent, they
a) aren't being partisan but are helping ordinary voters decide who to vote for, and
b) aren't compromising the independence of the person who is elected because that person, as judge, won't know which individual lawyers appearing in court actually made contributions to her or his campaign.
In applying equally to both the judge and the challenger, this unacknowledged "rule" and its "corollary" appear to meet a concept of fairness akin to that referred to by Anatole France when he wrote of: "The majestic egalitarianism of the law, which forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal bread." For some reason, the rule and its corollary also call to mind (mine, at least) the often-quoted although apocryphal statement by Marie Antoinette, the Queen of France in 1789, who, when told that her subjects didn't have bread to eat and were starving, said, "Let them eat cake."
Since the rule and its corollary apply equally, I suppose I am free to try find three politicians who'll support me, preferably the kind whose very pores literally sweat only politics, three who'll swear on the nearest Bible they know what they're talking about, one from the Democrats, one from the Republicans, and one from the Reformers -- sort of the way lawyers find expert witnesses to support their claims -- and then tell everybody that I, too, have "tripartisan-nonpartisan" support, not the dreaded, improper, forbidden "party" support.
But, frankly, I've made it clear that I don't want to "eat political cake" -- or "legal cake," for that matter -- no matter the frosting covering it. I not only said at the outset that I wouldn't seek or accept any political party's endorsement, I shortly thereafter made it clear that I wouldn't seek or accept any endorsements or contributions -- not from individual politicians, not from lawyers, not from bar groups, not from interest groups, not from supplicants, not from newspapers, not from anyone. And I have explained in detail why. Click here and here and here.
What is real judicial independence? Is it just independence from political parties? Might it also include independence from politicians and at least some degree of independence and distance from lawyers and their interest groups? I suggest that judicial independence is not that which results from relying on endorsements from partisan politicians, however sincere their expressions of nonpartisanship on this occasion may appear to be or however "unified" they may be in their endorsements. (Three wrongs don't make a right, and tripartisan support from partisan politicians is not nonpartisan independence from partisan politics.) I also suggest that real judicial independence is not that which results from relying on endorsements and contributions from lawyers who regularly practice before the court on which one serves -- a court, by the way, that is charged with regulating the legal profession, a profession that sorely needs reforming.
As I've suggested elsewhere, I think some of my opponent's surrogates and supporters who are prating so much about judicial independence really just don't like the constitution's provision of direct election of judges. They like, instead, the de facto system that developed, whereby supreme court justices who decide to leave office retire before their terms expire, thereby allowing the governor to make vacancy-filling interim appointments of lawyers who almost always are from the governor's own party (as my opponent, a career partisan politician, was) and more often than not are close political allies or aides of the governor. The unspoken quid pro quo is that each governor -- in order to benefit from this arrangement and ensure that future governors from his or her party, as well as his own appointees, will benefit from it -- must abide by it now and forevermore, supporting the appointees of other governors, past and future, if challenged. When some of my opponent's supporters prate about judicial independence, what they really seem to me to be saying is that judges appointed (usually by virtue of political connections) pursuant to this arrangement should be independent from opposition come election time.
Why don't these folks like elections? Well, I can't read their minds but perhaps it's because voters are unpredictable, meaning they might elect a qualified person who has the audacity to challenge the lawyer who was appointed pursuant to the above-described unwritten arrangement. And that, of course, would be bad -- bad regardless of the qualifications of the challenger. Some of my opponent's supporters apparently don't trust the voters' intelligence either, because they keep suggesting that voters might vote for me because I have a "well-known surname." What they do trust, what they do defend, with vigor and with dollars, is the current arrangement, and they are defending it with what I opine is a bogus argument that a vote for their candidate is a vote for "judicial independence."
If they really are concerned about "judicial independence," they shouldn't cheapen the idea by using it as they have been doing. Instead, they should respect the intelligence not just of ordinary voters but also of their peers in the profession and use the term with a little more lawyerly analytic precision, as does Stanford Law School Professor Pamela S. Karlan in "Two Concepts of Judicial Independence," 72 S. Cal. L. Rev. 535 (1999). In that essay, a draft of which I have read, Karlan takes the lead of Isaiah Berlin in his lecture "Two Concepts of Liberty," and distinguishes "judicial independence from" and "judicial indepedence to," just as she also distinguishes decisional independence from structural independence. And she points out that how one poses a question relating to judicial decisional independence suggests the answer: "Asking the question 'Should judges be free from the fear they will be tossed out of office for making a correct but unpopular decision?' suggests one answer. But asking the question 'Does judicial independence require the conscientious voter to disregard a judge's decisions?' suggests a different one." After discussing a couple examples, she says, "The point is this: without looking at the substance of a judge's ruling, even in a particular case, it is difficult to say that electoral retaliation is inherently bad. Moreover, once we move away from decisions in particular cases and toward the pronouncement of general legal rules, it is even less clear that individuals ought to be selected or retained without regard for their viewpoints....[I]t is not categorically true that we want judges to ignore popular opinion and rely on their own consciences, or that we want to protect judges who ignore politically settled interpretations and rely on their own views of the law. Sometimes we do and sometimes we don't."
IV. The need to talk about real accountability when talking about independence. In any event, if I'm elected I'm not going to talk about "judicial independence" loosely but with analytic precision. More importantly, I'm going to talk just as much about "judicial accountability," because, in this wonderful system of checks and balances, the two are necessarily and wisely in creative tension with each other.
When I talk about accountability, it's not going to mean more public appearances, more trips away from my chambers, more speeches. The great Justice Holmes gave only 45 or so speeches in his 50 years' of combined service on the bench, first in Massachusetts and then, starting at age 60, in Washington, D.C. They are collected in a wonderful slim little volume that I own. Many of them are just a few lines long. Each is carefully-crafted. Each is memorable. Holmes spent most of his time at the court, doing the job the people expected him to do, writing his own opinions, memorable ones, most of them refreshingly short ones, opinions that he wrote without delay immediately after the arguments were completed.
Not only am I going to spend most of my time at the court working on the cases and writing my own opinions, I'm going to make sure the people we hire to administer and manage our court system do a good job of it. One of the first things I'm going to do is create a new voluntary advisory committee on judicial administration, consisting of outsiders, preferably nonlawyers who have no relationship whatever with the administrators or the judges or the system. I'm talking about citizens with special expertise in administering large organizations, maybe some retired executives, men and women who are willing to provide a fresh perspective and a critical look at all aspects of state court administration, including budgeting. Such a committee will help me and the other coequal members of the court -- with solicited creative input from all other judges and all employees of the entire court system, not just those who are legally-trained -- maintain better supervisory control of the administrative branch of the state judicial system. Our system of government is a brilliant system of interlocking checks and balances. Without intending any personal criticism of anyone involved in state court administration, I think the time has come for just the sort of check on administration that I have described.
I mentioned budgeting. The 9.25.2000 issue of Minnesota Lawyer contains a long, detailed article summarizing plans to implement the Minnesota Court Information System (MNCIS) project, a massive project that will provide a redesigned, new computerized court information system. With the same kind of budgetary precision that left court administrators with red faces earlier this year, the director of the Minnesota Supreme Court's Information Technology Division (ITD), who is a good man running a big budget operation, is reported as estimating the cost of the project at somewhere "between $20 million and $60 million." Thus far the legislature has "set aside" a total of $6.5 million for the project. According to the report, "[The director] does not anticipate any major obstacles to receiving the rest of the funds needed for the project, at least not any more so than other projects."
The director apparently does not anticipate that the voters might elect me chief justice, because as chief I would be an "obstacle" to requesting any more funds without first a) receiving a detailed item-by-item economic cost-benefit analysis that satisfied me, b) personally consulting with independent outside experts not affiliated or acquainted with "ITD" personnel, and c) making sure that public information compiled and analyzed by such a system is going to be as available to the public (and, it follows, the press) as to judges, administrators, and other judicial personnel, and quickly via the internet. Any system that does not provide the public with maximum access to all public data, including court pleadings and briefs filed electronically, will not pass scrutiny, at least not mine.
In fact, judicial accountability requires that the chief justice and associate justices give strict scrutiny to the entire budget for the entire state court system. One word I'm going to be using is "cost-cutting." Just because the state has enjoyed budget surpluses in recent years doesn't mean we should simply plan on asking for more and more money every session, and we certainly shouldn't be asking for more if we haven't done our level best to find savings. And each interested person ought to have full access via the internet to the detailed line-by-line, item-by-item, salary-by-salary budget rather than the kind of summary budget that is typically publicly available.
Needless to say, anyone who has worked in state government knows there are cuts that can be made without affecting the quality of government services one bit. At its most basic level: bottled water. I don't know to what extent bottled water services are used throughout the state court system, but it would be interesting to find out. I do know that the supreme court uses a bottled water service, and that some employees even use it to make coffee, and I know that other courts also use bottled water services as well. We should ask what the cost is of seemingly "small items" like this one and if it's necessary in each court that uses such a service.
Similarly, just to use another example: law clerks. I think if you talk to former law clerks, ones who've worked at the court in recent years, you'll find that some of them will admit the court's relatively light caseload just doesn't justify the court's having more than seven law clerks, one per judge. District court judges used to do quite well without the assistance of law clerks. I intend to subject budgeting for law clerks to cost-benefit analysis.
The supreme court used to do quite well without a resident court p.r. person, the "court information officer." I believe that position -- indeed, every position in the entire court system -- needs to be subject to that kind of analysis. If the court is to employ a person in such a position, the person should become more of a facilitator of the free flow of real information -- not "lite" information -- concerning the entire judicial system. I have compared the court's annual public statistical reports in recent years with those from, say, the 1970's and early 1980's. The current reports are typically 10 or 15 pages long, are printed on glossier paper, contain lots of pictures, are visually appealing -- and contain little useful information. The older reports I have are typically much longer, 60 or 70 or 80 pages long, are printed on ordinary paper, make no attempt to be visually pleasing, and contain much more hard information useful to anyone who wants to form an independent opinion as to how the system is being administered.
One of the keys to my vision of real judicial accountability is more openness, and more detailed openness, with respect to judicial work activity and the judicial work product. As I said earlier, each individual judge's work calendars and timesheets and travel-and-expense reimbursement request forms are public documents obtainable, with some difficulty, by any citizen using the "sunshine" or openness-in-government law. With each judge in the state now being put on notice as a courtesy, I intend to make these and similar documents more easily accessible to ordinary taxpayers and voters by placing them on the court's internet web site. Similarly, I intend to put online for public scrutiny any statistical reports that the chief justice receives. Ultimately, I believe anyone who is interested ought to be able to type in any trial court or appellate court judge's name and obtain public information that will aid one in assessing that judge's work habits, productivity, etc. Moreover, after the fact one should be able to type in the name or number of any case and follow that case from start to completion, viewing, for example, at the supreme court level, the path and accompanying timeline as an opinion circulated through the supreme court, with the public given access to the dates the majority opinion and any separate opinions were put in circulation, the name and how much time each judge spent on the case before passing it on, etc. And this is all just the beginning....[to be continued]
Copyright (c) 2000 by Burton Randall Hanson - Prepared & published by candidate on his own behalf and at his own expense. Candidate may be reached by e-mail at BRH@CampaignWebSiteURL or by mail at address listed on Secretary of State's website.