Support for Judicial Independence is Essential
An independent judiciary, the third branch of government, is essential to democracy. This basic concept is taught in high school civics classes, universities, and law schools. It is revered by scholars, lawyers and judges. It is taken for granted by the public. The concept of an independent judiciary enjoys bipartisan support by our state and federal chief justices, and by bar associations nationwide. The Contra Costa County Bar Association (CCCBA) is to be congratulated for rejecting a position of neutrality on this issue in September.
Other Bay Area bar associations have been proactive on judicial independence and it is gratifying to see CCCBA join their ranks. This change recognizes that the notion of neutrality is problematic and may compromise CCCBA’s mission, which includes educating the public about the judicial system. Silence in the face of frivolous attacks on judicial independence is not neutral.
Neutrality is often misunderstood. Merriam-Webster defines it in pertinent part as “not aligned with a political or ideological grouping.” It is hard to imagine that the concept of an independent judiciary lends support to any competing “political or ideological grouping.” In fact, on August 8th of this year, Court of Appeals Ninth Circuit Judge M. Margaret McKeown said that attacks on the judiciary “threaten the rule of law itself.”
Further, neutrality, even if meritorious in other contexts, gives rise to an insurmountable problem—silence, when injustice prevails. Bullies and dictators attempt to silence critics and opposition. We are experiencing frequent, outrageous attacks on our judiciary by politicians and others. Silence in the face of those attacks is not neutral: citizens and lawyers in countries that once enjoyed democracies, but who remained silent when dictators dismantled their democratic institutions, paid a terrible price for their “neutrality.”
Ethical constraints preclude judges from defending themselves. The obligation to do so falls on other officers of the court, who are permitted to speak out against attacks on our venerated institution and do what lawyers are trained to do—advocate against any efforts to undermine judicial independence. In 2018, the San Francisco and Santa Clara Bar Associations demonstrated support for judicial independence when they advocated for the judges under attack there. We are delighted that the CCCBA recognizes the need to actively support judicial independence and we look forward to supporting these much-needed efforts.