The conversation on whether the U.S. judiciary is subject to the
whims of politics began long before the Thursday law school forum
on the subject.
Terri Schiavo, who had been in a vegetative state for 15 years,
became a household name when President Bush signed midnight
legislation last month asking a federal court to intervene and
determine whether Schiavo’s husband could remove her feeding
tube.
Opponents of rights for same-sex couples have until July 20 to
gather enough signatures to put a measure on the ballot to recall
Sacramento Superior Court Judge Loren McMaster, who ruled in favor
of the state’s same-sex domestic partners statute
But Gary Rowe, a professor of law at UCLA, says judicial
autonomy is strong despite recent events. While the courts are seen
today as a third branch of government, it wasn’t always so,
he said.
The Constitution’s drafters dedicated little space to the
judiciary, which began its life in the United States as a weaker
entity than it is today. As the courts have evolved,
justices’ general sentiments have changed with the times,
Rowe said.
“Are the judges sitting cloistered completely away from
public opinion? No,” he said.
But that doesn’t mean they base their rulings on opinion
polls, he added. Justices’ views change with society’s
norms, meaning issues like slavery are no longer debatable, he
said.
Notorious cases involving judicial independence are nothing new,
Thursday’s panelists said.
Abraham Lincoln’s accused assassin said in the early 1800s
he didn’t believe he could have a fair trial with all the
publicity surrounding his case, said Richard Gabriel, a jury
consultant and one of the speakers.
Los Angeles Superior Court Judge William MacLaughlin, who also
sat on the panel, said while some trials explode into national
media events, questions of judicial independence arise often in
mundane cases.
MacLaughlin said he had to recuse himself ““ that is,
disqualify himself as judge ““ because he read the first lines
of a letter from a city councilmember telling him one of the
parties in the case was a wonderful person.
“It’s not O.J. Simpson or something that happens in
the paper,” he said. “It happens all the
time.”
The question is not whether judicial independence exists, but to
what degree it should, MacLaughlin said. The constitution provides
for the impeachment of judges, and some justices in many states,
including California, are elected.
Though threats to independence have risen lately, it will take
much more than those attacks to bring the courts down, said Kenneth
Starr, dean of Pepperdine University’s law school.
“The very fact that independence of the judiciary has
become the issue du jour … shows that (the) system is extremely
resilient,” he said.
Between the forum’s five speakers, two issues emerged as
the most detrimental to the courts’ autonomy.
Public ignorance about the role of the judiciary must be
combatted with education, two speakers said. The others cited the
election of judges as the most poignant danger, especially given
the political nature of campaigns to recall justices and unseat
incumbents that have occurred in other states and may soon be seen
in California.
While states would ideally move toward a selection process more
closely mirroring the federal appointment system for judges, that
hope is still far from reality, MacLaughlin said.
“Unfortunately, it will not happen in California in my
lifetime,” he said. “So we all have to muddle along
with what we have."