Op-Ed: Montana Chapter of the American Board of Trial Advocates: Judicial Independence
“There is no liberty if the power of judging be not separated from the legislative and executive powers.” Alexander Hamilton, Federalist No. 78.
It is easy to attack those who cannot defend themselves. Ethical rules prevent judges from responding to partisan punches, even in self-defense. Despite this fact, politicians of all stripes tend to sound off when they learn of judicial decisions they don’t like. Sometimes though, political disagreements escalate into personal attacks on judges and legislative proposals to undermine and dominate the judicial branch.
When that happens, watch out, because freedom is in danger.
In 2020, the American Bar Association, explained: “In Mexico, the threat to independent judges comes from drug cartels. In Poland, it comes from the president and parliament. And in the United States, it comes from politicians who would turn impartial judges into partisan political actors.”
A nonpartisan judicial center reported last year that at least 26 states had introduced bills in 2021 that would “politicize or undermine” the independence of state courts.
In Montana, attempts are underway to discredit judges by subjecting them to ridicule, insult and even threats of criminal investigation and prosecution. Talk of impeachment is in the air. Proposals are on the table calling for term limits, making judicial elections more political, putting the Legislature in charge of judicial discipline and pressuring judges to toe a party line. All this, of course, is calculated to intimidate judges and render them subservient.
A 2018 poll by the National Judicial College found that 90% of American judges think judicial independence is threatened in the current political climate.
According to the American Board of Trial Advocates: “Recent years have witnessed a tremendous increase in attempts to assert political influence on the courts. These efforts came from politicians, political parties and special interests with a political agenda. Frequently they amount to efforts at intimidation and retaliation. When successful, they disrupt and interfere with the fair and impartial administration of justice.” Indeed, political vendettas aimed at the judiciary are assaults on the rule of law itself.
Attacks on the courts represent an attempt to usurp judicial authority and violate the separation of powers. We have all heard the term, but why does the separation of powers matter? What is so important about an independent judiciary?
The United States and Montana constitutions established three co-equal branches of government: legislative, executive and judicial. This “separation of powers” is designed to ensure that no one person or group accumulates too much authority.
These constitutions also guarantee fundamental individual rights like freedom of speech and religion, the right to bear arms, the rights to due process of law and to be free from unreasonable search and seizure, the rights to access the courts and to personal privacy. Together, the federal Bill of Rights and the Montana Declaration of Rights provide the legal fortress for the most cherished American value: LIBERTY. At least on paper they do — but without the independent judiciary, the paper means nothing.
The judicial branch is frustrating to some powerful interests. Unlike the legislative branch and the executive branch, judges cannot be lobbied. The decisions of judges turn not on relationships or passions or personal preferences, but on the law. Fact issues are decided by juries, based on evidence, and juries cannot be lobbied either. There is no buttonholing, no log rolling, no deal making, no wine and cheese receptions. And every person gets an equal seat in the courtroom regardless of their position or rank or wealth. So, it is not surprising that certain groups want to weaken this process.
The good news is that Americans overwhelmingly support strong courts that adjudicate cases without political interference. Montanans also have overwhelming confidence in the courts — so long as they remain independent. But because the judiciary has no army or treasury, its independence depends on the other branches of government to respect and honor its decisions and separate authority.
When the other branches fail to do that, our judges count on us — the people of Montana — to have their backs.
So, when self-serving political interests propose and advocate so-called “reforms” in the next few weeks, let your legislator know where you stand — with judicial independence and against those who threaten it.
Submitted by officers of the Montana Chapter of the American Board of Trial Advocates (ABOTA): Matt Hayhurst, president; Sean Goicoechea, president-elect; Susan Moriarity Miltko, secretary/treasurer; Paul Haffeman, membership chair; John Morrison, ABOTA National Board member.