Federal Judges and the Judicial Branch: Their Independence and Accountability - Gordon Bermant and Russell R. Wheeler

• Publication year: 1995

Federal Judges and the Judicial Branch: Their Independence and Accountability

Gordon Bermant^* and Russell R. Wheeler^**

I. Introduction

This issue of the Mercer Law Review was stimulated in part by a concern expressed by some federal judges that federal judicial independence is at risk. For example, the Committee on the Judicial Branch of the United States Judicial Conference expressed its hope that the symposium and other efforts will "address the concerns of judges about the protections afforded to them individually and to the Judiciary as an institution."¹ The Committee emphasized that those concerns "extend beyond the salary and tenure guarantees of the Constitution."² To many judges they also involve legislative and executive intervention into the operation of the judicial branch and the expansion of federal jurisdiction and workload. This paper addresses these concerns from a perspective gained by working within the federal judicial system.

Our purpose is to establish the validity or at least the plausibility of the following seven claims:

1. "Judicial independence" is an umbrella term covering several partially overlapping categories of activity within the judicial role and judicial branch organization: decisional, personal, procedural, and administrative.

2. Decisional independence is the sine qua non of the judicial function.

3. Federal judges do not now generally believe that their decisional independence is directly threatened from within or from outside of the judicial branch.

4. Some federal judges are concerned that their procedural and administrative independence are threatened by legislation and executive intervention.

5. The argument that administrative independence is a necessary condition for the exercise of decisional independence is a forceful one, but support for it comes from sources other than the text of the Constitution or the history of federal judicial administration.

6. Concern over loss of administrative and procedural independence flows from the widespread perception within the judicial branch that federal jurisdiction and workload have grown so large that the historical prestige and quality of the federal bench are at risk.

7. Efforts by the judicial branch to sustain or increase its administrative and procedural independence is enhanced by internal organization that emphasizes and displays strong within-branch accountability.

Sections II-V, taken together, attempt to establish these seven claims. Section II defines the framework within which to consider both the scope of judicial independence and the protection that society should afford its several categories. Section III deals with decisional independence, noting that if there are real threats to judges' decisional or personal independence, they would most likely arise through the operation of procedures for disciplining and removing judges. The recent history of congressional review of judicial discipline and removal, in particular some of the research conducted for and conclusions of the National Commission on Judicial Discipline & Removal, suggests that current disciplinary activities within the branch do not, nor do they appear to, invade judicial independence in the sense of biasing or coercing judicial decisions in specific cases.

Section IV concentrates on judicial assessments of branch independence and particularly on the perceived intrusiveness of the legislature and executive into the administrative and procedural aspects of judicial branch function. Some federal judges believe that these perceived encroachments threaten the long term decisional independence of the Article III bench.

Branch independence is a relatively new idea. It does not have the same clear constitutional or historical antecedents that decisional independence has. Section V analyzes the idea of branch independence within the environment in which federal judges currently operate, attempting to discern whether the administrative and procedural pressures affecting the judges erode or otherwise detract from their decisional independence. The analysis suggests that judges see a threat to branch independence in the expansion of federal jurisdiction and caseload, with resulting deleterious impacts on the size and institutional quality of the federal courts. As viewed from within, coping with problems of ever-increasing size and workload represents the largest problem facing the federal courts. Other, more detailed complaints about intrusiveness flow from this root concern. The degree of urgency of this problem, however, is not shared by many influential actors outside of the federal judiciary. The lack of shared assumptions makes communication and problem solving harder than it would otherwise be.

The section concludes with the following conjecture: the success of the judicial branch in reaching its goal of branch independence may depend in part on the extent and publicity of judicial accountability that the branch exercises internally. Appropriately, by its nature within the constitutional framework, the judicial branch is largely insulated from the partisan and popular pressures that operate on the political branches. Congressional and executive intrusions into the administration and procedure of federal courts may be fueled by a perception that internal judicial branch systems of control and accountability are insufficient, thus making it necessary for the political branches to intervene. The unique salary and tenure provisions of the Article III bench create requirements on the members of the bench to act, and to appear to act, according to the highest standards both on and off the bench. Maximum independence of the judicial branch from administrative and procedural control by the political branches needs to be grounded on public perception that the judicial branch accepts and rigorously enforces those standards in respect to the quality of judicial decision making, procedural efficiency and safeguards, and administrative economy.

II. Categories of Independence

This section presents a general framework for the discussion of judicial independence. Our analysis is not concerned primarily with the

Constitution's tenure and salary provisions; rather, we consider what, if anything, judicial independence requires in addition to secure salary and tenure.³

In 1978, Judge J. Clifford Wallace identified four categories of judicial independence.⁴ This paper borrows Judge Wallace's categories. We thus refer to: decisional independence—the judge's authority to decide law cases based solely on the law and the facts;⁵ personal independence—the judge's freedom to participate, subject to the demands of the judicial role, in the normal activities of social intercourse;⁶ procedural independence—the judicial branch's authority to devise the rules of procedure by which the judicial process operates;⁷ and administrative independence—the judicial branch's authority to administer itself as a co-equal and coordinate branch of government.⁸

These four categories aggregate, with some overlap, into the two larger categories of independence: the independence of the individual judge and the independence of the judicial branch. Decisional and personal autonomy vest primarily in the individual judge and secondarily in the branch, while procedural and logistic autonomy vest primarily in the branch, through its rule-making powers and governance, and secondarily in the individual judge.

Decisional independence is the sine qua non of judicial independence. It is important to remember, nevertheless, that decisional independence is an instrumental, not a fundamental value. Courts do not exist to provide judges with independence. The Constitution protects judges' independence, so that they can provide justice impartially. As decisional independence exists to serve the impartial administration of justice, so do procedural and administrative independence exist to serve decisional independence.

III. Decisional Independence

Judges must be able to render decisions in the cases before them free from both threat of coercion and susceptibility to proffered favor. This is as true of the trial judge working alone as it is of the appellate judge working in a panel or en banc. In 1871, the United States Supreme Court announced the principle, in the context of clarifying limits on judicial immunity:

It is essential in all courts that the judges who are appointed to administer the law should be permitted to administer it under the protection of the law, independently and freely, without favor and without fear. This provision of the law is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence, and without fear of consequences.⁹

It is the essence of good judicial process that it is uncontaminated by pressures for decision beyond those presented by the particular facts and the applicable law. The salary and tenure protections of the Constitution were intended to secure decisional independence. It is the decisional independence of federal judges that the nation relies on for the emergence of its "unlikely heroes" on the bench.¹⁰ Judicial opinions are perpetually attacked by editorial writers, national and local officials, and disgruntled litigants. The constitutional protections ease the judges' burdens in putting up with these attacks.

Still, our political and legal systems are not designed to make the independence of judges absolute. Absolute independence, for example, would require shielding judges absolutely from any susceptibility to proffered favor. Nevertheless, the fact remains that Presidents may select Supreme Court Justices and circuit judges from the ranks of sitting circuit and district judges. A judge hoping for elevation might conceivably adapt his or her behavior to please those making such appointments. The risk that a judge would...