The month in a nutshell: attacks on judicial independence are joined by actual attacks on judges, and the judiciary continues its slow embrace of technology
After a challenging July that saw significant threats to judicial independence in Poland, court systems worldwide might have hoped for some restoration of respect for the third branch as an independent entity. Not so much: the Polish government continued to dig in its heels on reforms that would weaken the judiciary, leading to increased political tensions with the EU and especially Germany. Near the end of the month, the government of Romania and the Palestinian authority announced their own efforts to circumscribe their judges’ independence in the name of populist reform.
Even more disheartening was a series of threats and attacks–both physical and on the internet–on judges across the world. In Ohio, a judge was shot on the courthouse steps. Remarkably, he returned fire, and survived–and the fact that he was armed led to a broader discussion of how judges should protect themselves. In the United Kingdom, the courts announced that visitors would have to take a sip of their drinks to prove they did not contain disfiguring acid. In Mississippi, a state judge received death threats on social media after he removed the state flag (which partially contains the Confederate flag) from his courtroom.
But there was good news on the social media front as well. A Florida panel ruled that Facebook friendships with attorneys do not automatically disqualify judges from hearing cases. And more broadly in the realm of technology, two state supreme courts began streaming their oral arguments, and the U.S. Supreme Court finally adopted electronic filing.
Regular readers of this blog know that I am strong advocate of broadcasting courtroom proceedings. But increasing use of cameras and live streaming may mean the death knell for vivid courtroom illustration. Natasha Frost has a very interesting article at Atlas Obscura that looks at some of the history of this dying art.
For years, trials have been in decline in American courts: only 1-2% of all cases filed will eventually make it to a jury or bench trial. This decline has also meant fewer opportunities for young lawyers to sharpen their courtroom skills.
The ABA Section of Litigation has initiated a new program to give those young lawyers more courtroom experience, and the ABA’s Judicial Division has signed on. These changes cannot, by themselves, reverse all the trends that have moved litigation away from trial outcomes. But given the continued importance of trials in the American legal system, they are still welcome developments.
The month in a nutshell: Judicial independence is under attack worldwide, especially in Poland — where an effort to exert executive branch control over its judges draws international criticism.
Throughout July 2017, judges across the world faced a variety of challenges to their individual and organizational independence. Among other things, Californians commenced a poorly thought-out effort to remove Judge Aaron Persky. And facing low salaries, Uganda’s judges voted to strike if they did not receive a pay raise.
But the big news was in Poland, where the ruling Law and Justice Party proposed a series of bills that would have effectively given control of the judiciary to the executive branch. Among the proposals: cutting the judiciary out of the judicial appointment process, and allowing the Attorney General to remove and replace Supreme Court Justices he did not like. The bills were widely seen as a power grab that threatened the judiciary’s independence, leading to more than a week of protests in Warsaw and international criticism. Although two bills passed the Polish legislature, they were eventually vetoed by President Andrzej Duda. Still, Duda did sign other reform legislation, including a bill allowing unilateral replacement of lower court judges by the executive branch. Just yesterday, the European Union sent a letter to the Polish government, reiterating its intent to take away Poland’s voting privileges in that body if any Supreme Court Justices are removed.
Back in the United States, an increasing number of reports suggested the perils of using social media and texting for judges. And the President continued to make slow progress in nominating candidates for federal judicial vacancies.
There was good news, too, dear reader. Under the radar, many courts continued to initiate projects to reflect the needs of their communities. The New York courts announced a plan to place opioid overdose kits in their courthouses. North Carolina started two programs to ease court congestion in traffic and landlord-tenant cases. And courts across the country continued to increase the transparency of their work, by posting court filings online or by allowing cameras into the courtroom for hearings of public interest.
In the wake of more than a week of protests, Polish President Andrzej Duda has vetoed legislation that would have given substantial control over the judiciary to the executive branch. Poland’s ruling Law and Justice Party shepherded the bills through both houses of the legislature late last week. From the CBC:
Duda said that the country’s justice system as it works now is in need of reform, but he said that the changes lawmakers had proposed threaten to create an oppressive system and that the protests of recent days show that the changes would divide society.
He said that there is no tradition in Poland for a prosecutor general to have such large powers and he would not agree to that now.
This is a victory for judicial independence, but it does not end the saga. Poland’s judiciary does need some modernizing, and we should expect some new, less drastic, legislation toward that end in the near future.
Previous coverage here, here, and here.
At Above the Law, Nicole Black has an interesting piece on “judicial missteps” associated with social media use. Judges have faced recent disciplinary actions for posting on Facebook about active cases, attorneys appearing before them, or other judicial candidates. Black reminds us:
But the convenience of the immediacy and reach of social media is often tempered by its permanency. After all, a single tweet or Facebook post can have unintended and long-lasting effects. Unfortunately, that’s something people often forget in the heat of the moment, resulting in regrettable and irreversible mistakes.
That’s good advice for everyone. A little discretion on the internet goes a long way.
“An American judge … cannot compel the people to make laws, but at least he can constrain them to be faithful to their own laws and remain in harmony with themselves.”
“I am aware of a hidden tendency in the United States leading the people to diminish judicial power; under most of the state constitutions the government can, at the request of both houses, remove a judge from office. Under some constitutions the judges are elected and subject to frequent reelection. I venture to predict that sooner or later these innovations will have dire results and that one day it will be seen that by diminishing the magistrates’ independence, not judicial power only but the democratic republic itself has been attacked.”
“I do not know whether a jury is good for litigants, but I am sure it is very good for those who have to decide the case. I regard it as one of the most effective means of popular education at society’s disposal.”
— Selected from Democracy in America (13th ed. 1850)