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)
I noted in May that Canadian authorities were weighing whether to mandate training on sexual assault and domestic violence cases for the country’s judges. That training has now begun for new judges, and the Toronto Star provides a thoughtful report here on how it operates.
The month in a nutshell: the governments of Ireland and North Carolina are each rattled by judicial selection controversies, a group of Brooklyn lawyers challenges the city’s de facto judgemakers, and courts around the world make quiet adjustments to better serve their communities and customers.
June 2017 was highlighted by two extensive controversies over judicial selection procedures on each side of the Atlantic. In Ireland, the outgoing government gave a last-minute judicial appointment to Attorney General Maire Whelan, sparking outrage from minority parties in the government and threatening the viability of the new government. The story continues to play out, as government officials seek to implement a new judicial screening committee. In Pennsylvania, after another messy election season in May, a move away from elections and toward merit selection was endorsed by a small cohort of legislators and five former governors. And in North Carolina, itself no stranger to judicial selection wars this spring, the state chief justice threw his own support to merit selection in an address to the state bar.
Another challenge to established judicial selection procedures was more homegrown. Brooklyn attorney John O’Hara announced a slate of six “independent” Democrats who will seek judicial seats outside of the Democratic Party machine. O’Hara and his cohort argue that the party’s “so called independent judicial screening panel is not very independent.” They may have a point, if this embarrassing meet-and-greet with a local party boss or this scathing editorial are any indication.
The month was also noteworthy for a number of events that made international news. In Australia, local politicians were haled into court to explain why they should not be held in contempt for criticizing judges and eroding trust in the judicial system. (Check out the interesting discussion I had about this with reader El Roam in the comments.) The United Kingdom agreed to take on a year-long study of judicial pay and working conditions, amidst furious attacks on the judiciary in the wake of Brexit and a recent poll suggesting lower rates of public confidence in the British judiciary. In Israel, watchdog groups questioned the court’s official statistics on divorce proceedings, again illustrating the challenges faced (and posed) by specialized religious courts in a pluralistic society. And in India, a courthouse literally collapsed.
Then the U.S. Supreme Court suspended the wrong lawyer. Sigh.
Through it all, and much more quietly, there were almost daily examples of courts and legislatures making changes to the way they do business in order to better align with the needs of the communities they serve. Minnesota added two new judges to help address the growth in criminal and child protection filings. Eagle, Colorado developed a partnership between a problem-solving court and a local Masonic Lodge to give vocational training to recovering drug and alcohol offenders. And El Paso County, Texas, converted a civil court into a family court to better reflect the nature of its filings.
Again, a recurring theme in emerging in these monthly roundups: while high-profile issues of judicial selection, judicial ethics, and judicial independence dominate the headlines, the much lower profile work of efficient caseload processing, internal allocation of resources, and working with the community itself proceeds unabated.
Today brings the sad news that Justice At Stake, an important court reform group of the past 16 years, has closed down due to funding woes. JAS had moved in recent years toward more explicit advocacy of merit selection, which did not sit well with some in its core donor base.
I had the great pleasure of working with Justice At Stake during my time with the Institute for the Advancement of the American Legal System (IAALS), and I was consistently impressed how deftly and charismatically its leadership brought together reform groups from around the country. I made friends and colleagues from the Brennan Center for Justice, American Judicature Society, Lambda Legal, Pennsylvanians for Modern Courts, National Center for State Courts, and countless other organizations. Even when I disagreed with certain individuals on other matters of policy, I was always heartened by our shared conviction that the American courts deserved both reform and vigorous defense. It was a testament to the JAS leadership that we were always kept focused and on track. Its legacy is sure to last.
This is an interesting article on the use of trained dogs in courthouses to calm abuse victims and others who must testify about highly emotional issues. It does a nice job laying out the arguments for and against the use of dogs, namely that they can comfort witnesses and elicit better testimony, but they also risk prejudicing juries against criminal defendants by making prosecution witnesses seem more sympathetic.