Judicial Independence: An Important Cornerstone of a Democratic Country

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On April 30, 2007, in her speech celebrating Law Day, the late New York State Chief Judge Judith Kaye spoke of . . .”assuring a vibrant democracy for future generations through judicial independence, a cornerstone of our great nation.” In response to President Trump’s November 20, 2018, Twitter attack on U.S District Judge Jon Tigar following his ruling that the President did not have the authority to limit requests by migrants for asylum–characterizing Judge Tigar as an “Obama judge”—Chief Justice John Roberts Jr. responded: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.” The Chief Justice’s response brought forth the following reply (by Twitter) from the President: “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country.” In his 2007 annual report referred to in Essay Question 1, Chief Justice Roberts had written: “Many foreign judges cannot exercise independent judgment on matters of law without fear of reprisal or removal.” Events in Poland and other countries during the past few years underscore Chief Justice Robert’s point by further highlighting the significance of judicial independence.

More than two centuries ago, the Framers of the U.S. Constitution sought to assure the independence of the newly created Federal Judiciary, to make it "as independent as the lot of humanity will admit." The Framers also believed that "there is no liberty if the power of judging be not separated from the legislative and executive powers." [The Federalist Papers #78]

 a) What provisions of the U.S. Constitution are designed to assure the independence of Federal judges?

b) Describe the procedures by which Federal judges are appointed, supervised, and removed from office. Please explain. What unusual circumstances have enabled President Trump to impact the makeup of the United States Courts of Appeals judges as significantly as he has?

c) During July 2015 hearings conducted by a Senate Judiciary subcommittee, Texas Senator and then candidate for the Republican Presidential nomination Ted Cruz sought “possible solutions to Supreme Court activism.” He suggested, among other recommendations, a Constitutional amendment requiring retention elections (as some states do for their state supreme court judges) for the U.S. Supreme Court justices. Do you agree with this recommendation? Why or why not?

d) The selection of state court judges differs significantly from the selection of Federal judges. What are the different methods used to select state court judges? What problems have emerged as a consequence of the judicial selection methods followed in most of the states? What would Alexander Hamilton, the author of Federalist Papers #78-82, think about elected judges?

e) How protected from professional retribution should elected state judges be for making unpopular decisions? Should voters have the opportunity to remove judges because of disagreement with their decisions?

f) Which system of selecting judges–the Federal or one used by most of the states–do you prefer? Why? Please give several strong arguments in support of your position.

g) And, finally, in the light of the insights and knowledge you now have, what is your assessment of the exchange between President Trump and Chief Justice Roberts quoted above?