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Judicial Independence Dialogue
Jun 5, 2025
Federalist Society 2008 National Convention Mayflower Hotel, Washington, DC November 21, 2008, 11:00 a.m. - 12:00 noon Grand Ballroom * Mr. H. Thomas Wells Jr., American Bar Association, and Maynard, Cooper & Gale, P.C. * Hon. William H., Pryor Jr., United States Court of Appeals, Eleventh Circuit * Moderator: Mr. M. Edward Whelan III, Ethics and Public Policy Center Member: Jon Roland
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policy center i'm pleased to welcome you to this dialogue on the topic of judicial independence
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before we start let me remind you that lunch will follow immediately after this we're going to stop sharply at noon
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and go straight to lunch without a break judicial independence seems to be one of
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those concepts that virtually everyone favors but to which different people assign very different meanings
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the very phrase judicial independence invites the question independence from what but that question
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seems curiously neglected former supreme court justice sandra day o'connor has made
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defense of judicial independence a project of her post-judicial career two years ago
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in a wall street journal op-ed entitled the threat to judicial independence she declared that
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the breadth and intensity of rage currently being leveled at the judiciary may be unmatched in american history in
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immediate support of this dramatic proposition justice o'connor presented these assertions these are all close
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the ubiquitous activist judges who legislate from the bench have become central villains on today's domestic
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political landscape elected officials routinely scored cheap points by railing against the
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elitist judges several jeremiahs are published every year warning of the dangers of
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judicial supremacy and judicial tyranny and using judges as
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punching bags presents a great threat to the independent judiciary now to be
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sure justice o'connor assured her readers an independent judiciary does not mean that somehow can properly criticize
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judicial decisions and that what matters is quote making sure that criticism does not cross over into intimidation
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but her ability to distinguish between criticism and intimidation is highly suspect when she evidently finds
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intimidating such phrases as activist judges legislate from the bench and
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judicial supremacy in the interest of full disclosure i'll volunteer that in my best family's blog on national review
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online and my other writings i regularly engage in vigorous criticism of unsound judicial rulings and of
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judges who don't understand the proper limits of the judicial role so i won't pretend to be neutral on
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justice o'connor's expansive conception of judicial independence and i'm sorry but not surprised that she
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has applied to the topic of judicial independence the same level of analytical rigor that alas marked her judicial career
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my role today is to moderate or perhaps to aggravate a discussion between our two
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distinguished guests both of whom as it happens hailed in the state of alabama i'll introduce them very briefly judge
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william h pryor jr has served with distinction on the u.s court of appeals for the 11th circuit
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since 2004 from 1997 2004 judge pryor is attorney general of
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the state of alabama among his publications is a 2007 virginia larvae article titled not so serious threats to
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judicial independence h thomas wells jr to my right is serving
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a one year term as president of the american bar association for the last decade or so the aba has had a standing committee
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on judicial independence which among other things as it puts it provides resources to enable lawyers and
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the public to respond in a timely fashion to unfair and unjust criticism of judges mr wells is a partner and
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founding member of the law firm of maynard cooper and gale in birmingham alabama
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does the concept of judicial independence derive from and reflect separation of powers principles and to
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the real threats to judicial independence come from governmental actors including judges who fail to respect
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these principles or as justice o'connor evidently believes does judicial independence
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require that citizens be especially delicate and deferential in expressing their criticisms of judges and judicial
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rulings is there some middle ground position our lawyers who embrace expansive notions of judicial
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independence like justice o'connor's really just trying to ingratiate themselves with judges
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in order to advance their own professional ambitions or worse to provide camouflage for activist judges to
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advance the ideological agendas the lawyers favor should we instead be
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concerned about the threats that judicial supremacy poses to our system of representative government
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i hope that today's discussion will shed light of what judicial independence properly understood is and on what are
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and are not genuine threats to judicial independence judge pryor
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good morning thank you ed for that introduction i think it's fitting that there are
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two speakers for this dialogue from who hail from the great state of alabama
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after all it is november it's the month of
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the great end of college football season and uh the mighty crimson tide all is
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right in the world is ranked number one and undefeated
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talk of judicial independence as um as i mentioned all the rage
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in recent years leaders of the bench and bar have derided what they described as
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unprecedented assaults on the independence of the judiciary the most prominent leader of this course
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has been as i've mentioned a distinguished american and public servant
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retired associate justice sandra day o'connor at a meeting of the american law
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institute justice o'connor thanked the institute for its defense of judicial independence
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which she described as under the most serious attack in her lifetime and as he read a moment
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ago in her op-ed in the wall street journal justice o'connor stated that the intensity of rage currently being
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leveled at the judiciary is perhaps unbashed in american history but she has not been
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alone michael greco who was the president recently of the american bar association
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addressed the house of delegates and said ironically while american lawyers in the american bar association are
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helping to build independent judicial systems in emerging democracies around the world
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our own courts are under unprecedented attack michael traynor in a letter to the membership of the
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american law institute of which he served as president wrote judicial independence is especially important today because
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the judiciary and the rule of law are under relentless and severe attacks
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from various supporters now chief justice roberts even got into the
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act a couple of years ago as he urged congress to provide judges an increase in salaries and describe the
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current level of pay as a threat to judicial independence
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now i respectfully disagree with the conventional wisdom of
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prevention board i said that the independence of the judiciary today is as secure as ever the current criticisms of
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the judiciary are relatively mild and on balance a benefit to the judiciary
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i will say i'm sympathetic to a call for an increase in pay
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my spouse is a certified public accountant and frequently reminds me of the opportunity cost of public
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service but to say that our current level of pay is a threat to our independence i think
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is an exaggeration as a judge whose nomination confirmation generated controversy
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uh even a filibuster there was even litigation about my earlier recess appointment i believe that the
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appointment process on balance is beneficial to the judiciary i do not mean to
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suggest that judicial independence is unimportant it is indispensable to the rule of law
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thomas paine explained in common sense in absolute governance the king islam
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and in america the law is king judicial independence is now has always been
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the primary reason that in america the law is king but if we look at a brief review of the
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history of our judiciary particularly in the supreme court of the united states would suggest that there is a tested
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method for defending our independence and that is to respect the limits of our authority
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to that end i want to talk briefly about three things first i want to talk about the original understanding
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of judicial independence second i want to address three moments in american history when
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the independence of the judiciary was challenged and the lesson to be learned from that history and then i want to explain briefly why i think the
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contemporary challenges to the judiciary were not serious threats to independence
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americans recognized the need for judicial independence from the beginning of our nation two of the grievances
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against king george listed in the declaration of independence involved the absence
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of judicial independence in colonial america the declaration charged that the king had instructed the
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administration justice by refusing his assent to laws for establishing the judiciary powers
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and it made judges dependent on his will alone both for the tenure of their offices and
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the amount and payment of their salaries and the framers widely agreed that we needed an independent judiciary at the
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constitutional convention they first vested the entire judicial power
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in a federal judiciary second they provided the judges would have like
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tenure or as the constitution puts it obtained very good behavior and they provided that their compensation of
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judges shall not be administering their continuation in office the framers believed in judicial independence but
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not in the literal sense of the word independent they expected the judiciary to be accountable
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to the people judges would be appointed by the president with the advice and consent of the senate
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judges would be subject to impeachment judges would be bound by voter affirmation to support the constitution
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of the house of the united states judicial independence as originally understood and is understood today
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refers to two kinds of independence one strong the other weak the first is decisional independence
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that is the ability of an individual judge to decide each case fairly and impartially based on the facts involved
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the second is institutional independence that is the ability of the judiciary is a separate branch
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to protect its institutional integrity the structure of the constitution
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provides strong protections for the decisional independence of the judiciary but wheat protections
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for its institutional independence we have what scholars have described as independent judges and independent
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judiciary this design was explained during the ratification ratification debates by the
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most eloquent defender of judicial independence the original wall street lawyer alexander hamilton and federalist 88
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78 he explicated the tie between strong decisional independence and judicial
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review he described life tenure as the foremost guarantee of decisional independence and protection from cuts
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and pay as a close second when the another federalist charge that the judiciary would be too
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independent hamilton responded the judiciary would be institutionally weak the least
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dangerous branch because it has no influence over the either the sword or the purse
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no direction mother and the strength of the wealth of society but what about federalist 81
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where hamilton responded about the ultimate check of judicial abuse
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he also wrote that americans could rest assured that the judiciary would not
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abuse its power because congress retained the check of impeachment
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now after this auspicious beginning there have been at least three periods of serious challenges to the independence of the
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judiciary to the 19th century one in the 20th the first came during the advent of the
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administration of thomas jefferson the second came during reconstruction the third came during the new deal each period of
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challenge was marked with restraint by the judiciary followed by increased respect for its independence
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when thomas jefferson and his political party rested control of both the presidency and congress the
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losing federalists during their lame dutch session passed the judiciary act of 1801 which created
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new judgeships in the final weeks of the administration president adams nominated at the senate
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confirmed federalists to fill the new offices and in the final hours adams signed the commissions for the new
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officers the so-called midnight officers midnight judges some of the commissions that including that
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of william marbury were not delivered before adam's turn expired and the new
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president refused to honor the appointments when the jeffersonian republic republicans came to power they proceeded
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to undo the work of the police they repealed the judiciary act abolish the new judgeships canceled the june and
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december terms of the supreme court and as every law student learns william marbury then sued
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jefferson secretary of state james madison by filing a petition for rid of man famous in the supreme court
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most scholars believe that the jefferson administration would not have obeyed in order to deliver them that commission the
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supreme court responded to this controversy with its most celebrated decision in american history
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marguerite versus madison and that decision was a model of restraint
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that would help set the stage for the judiciary to weather a serious challenge from the jeffersonians
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rather than order the delivery of the commission the court dismissed it before reaching its decision the court
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explained that it would not review any political judgment of of the executive the court moved that the purported grant
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of original jurisdiction for the court to issue the written was unconstitutional because article 3 defined and limited
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the original jurisdiction of the supreme court the court acted with restraint now long afterwards of
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course there was an attempt by the jefferson republicans uh that it was actually
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the fouls voted to impeach justice championship samuel chase but he was acquitted by the
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senate and i don't want to say that there's a cause of effect but i would propose that
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perhaps if the court had reacted differently in marguerite versus medicine and worse in branch relations perhaps
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the chase trial would not have turned out so well the second challenge came of course during reconstruction
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reconstruction congress did not look kindly on the federal judiciary because of the dred scott decision particularly
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they did not look kindly on the supreme court and um and we all know about the case of exporting
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mccarter when a newspaper editor from vicksburg mississippi was jailed awaiting trial by a military tribunal on
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charges of inciting insurrection and impeding reconstruction he filed a petition for him abuse corpus
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that eventually found its way to the supreme court everyone expected the supreme court to declare reconstruction acts
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unconstitutional but the court instead awaited the judgment of congress to repeal its appellate jurisdiction
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and dismiss the case in the years following congress responded by enlarging the
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jurisdiction of the federal courts endings or reducing circuit writing responsibilities
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of supreme court justices the restraint of the court was reciprocated with and i'm not saying
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this was cause and effect but had the court acted without restraint perhaps
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the federal judiciary would not have done as well as it did in the in the later years and of course we all know from the new deal period
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about president roosevelt's court packing proposal and we know
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too that near that time the supreme court changed its
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perspective of economic and social legislation coming from congress
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justice roberts vote which was called the switch in time that saved kind which he had agreed to do in conference
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before roosevelt ever unveiled his court packing legislation
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ultimately defused a controversy and the independence of the federal
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judiciary remains secure now i think one lesson from this history is
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that um the judiciary uh serves as its best defender of its independence
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by acting with restraint but if you look at these moments in history and you contrast them with what are regarded as
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the contemporary threats to judicial independence whether it's public criticisms of the judiciary
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or legislation to encourage initial power or the politics of appointment
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particularly and particularly the confirmation process i think they all prepare a comparison
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criticisms of the judiciary read dissenting opinions of supreme court justices
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they're far harsher than virtually anything that is said in the political arena
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we have a few law professors here my gosh if we um if we end criticism of the judiciary
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what are all these law professors going to do they already have too much free time by
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boy my hearty and and look judges and all professors need each other how else are we to expect anyone to read
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what each other writes
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what about uh legislation to curb the tradition we may hear from my um my friend from birmingham uh that
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there was this terrible proposal in south dakota that sponsored by a group called jail for
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judges what happened to that proposal it was defeated by 89.21
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of the voters of south dakota they got nowhere it looks like judicial independence is
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still safe in south dakota and then there's the confirmation process yes it's gotten
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heated it's gotten political there's no question about that but i've had two different lives i've
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had a political life before i had the privilege of service in
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my current judicial life trust me if given the choice between having to
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endure what senators and the president have to endure speaking on the stone shaking the hands
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riding the rubber chicken circuit filming the advertisements raising the funds
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i'll take answering the questions and the confirmation process every single day
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there's a lot that we should expect for those who are going to serve the public there's a lot at stake but at
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the end of the day i would say that if you want to look for who should be
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the best guardians of judicial independence look in the mirror it is not unfair for
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judges to ask sometimes whether some criticisms of our work are unfair ultimately
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our independence depends on the persuasiveness of our of our own work and our own
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opinions so we are the best and first guardians of judicial independence thank you
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first let me uh begin with two very clear areas that my friend bill
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pryor and i agree on number one it's always good to have a conversation
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with someone else who doesn't have an
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accident and second things are right in the world when the crimson tide is
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number one in november in my year leading up to
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becoming president of the american bar association a post i assumed in august of
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uh just a few months ago i spent a good bit of time traveling and talking
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to barb associations bar leaders judges and others across the country
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indeed i think i'm correct that i've been on the road so far this calendar year approximately
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200 days i can't imagine what the presidential candidates
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can think about their travel schedule given the wear and tear it is given on my body but in that
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i was hearing from different places from different bar associations from
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different lawyers and from different judges what it first seemed to me to be
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sort of dissonant comments until i had a chance to go back and reflect on what
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they were saying and as i had a chance to reflect it all sort of coalesced in my mind that
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what they were really talking about in their particular location in their particular jurisdiction
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in their particular court were in one way or another threats
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to judicial independence let me enumerate what i see
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as some of the threats to judicial independence i am not going to limit my remarks to
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the federal system obviously because i've been talking to state bar associations local bar
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associations state court judges as well as federal court judges so i'm going to talk in a broader sense
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than simply the federal system as i see it first and foremost as a threat to judicial
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independence is the escalating politicization of the selection process
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particularly but not exclusively in state high courts
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i think unfortunately we are now seeing the predicted bad effects
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in state judicial races of the supreme court's decision in republican party minnesota versus
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white uh i will point you to two examples
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one uh there is now a pending judicial disciplinary proceeding in
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wisconsin entitled enrage judicial disciplinary proceedings versus honorable michael
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gatewood mr gableman was running to unseat a sitting justice of the
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wisconsin supreme court and in doing so ran what is reported to
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be a patently false ad that while as a public defender
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the sitting justice had gotten an accused off on a quote loophole or technicality
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allowing this person to go out go off and commit more crimes mr gableman as you can tell by the uh
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style since he is now the honorable michael gaiglin despite the fact that he ran a paperwork according to the
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payment of false ad is now the subject of judicial disciplinary proceedings to which he is responding guess what
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republican party in minnesota versus white i have a first amendment right to say and do almost anything
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in a judicial election let me give you a second example this is
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from my own home state of alabama we have a rather nasty race
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for the open seat of justice harold c who was on our panel yesterday where we
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had two candidates who between the two of them spent 3.8 million dollars
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i'm glad justice c realizes now his seat was worth so much
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but in addition to the 3.8 million dollars that the candidates spent there was an interest group in virginia
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that was running what are what are called push polls they spent over a million dollars in
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advertising but in addition they were doing these push polls and in doing the push polls they were
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making false statements about supposed rankings of the candidates by the alabama state
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bar these were patently false to the point that the president of the alabama state
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mark white has referred the matter to the state attorney general for investigation of these false states
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i submit to you that the costly and unseemly elections that we are seeing
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causes a perception at least in the public of influence of
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contributions on decisions and i see that
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as a direct threat to the decisional independence of our judiciary
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we've also talked a bit about the caperton versus massey cole company case
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that was i believe discussed a bit yesterday for those of you who aren't here this is a case where the supreme court
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just granted the search ferrari in a situation where a coal company sued
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the president of another coal company in west virginia i believe as i recall it was a
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fortunate appearance of business relations case and received a multi-billion dollar verdict
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in the interim the judgment debtor donated three million dollars to the
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campaign of a lawyer who was running for the west virginia supreme court
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who got elected who then heard the case and decided not to recuse himself and
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cast the deciding vote the one vote majority to reverse
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the judgment against the multi-million dollar judgment against
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the judgment debtor i submit to you again this is a situation and
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i'm familiar with the facts of this case because the american bar association in part of the request of ted olson
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who's representing the appellate in that case following weakness brief that the petition for certiorari stage
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something that we rarely do but we perceive this to be enough of a judicial
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independence issue and the request actually came up through our standing video on judicial
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independence then we decided to file the petition stage now that the petition has been
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granted we will of course be filing at the merit stage
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is the sort of common sense that this perception that contributions
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might influence decisions borne out when you actually poll people i suggest
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to you that it does the polls in the past several years have shown that while
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78 of the people believe that courts should be free of political and public
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pressure still 72 percent of the people
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polled are concerned that money contributions compromise judicial
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impartiality 76 believes that the money
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contributed in judicial elections influences decisions in judicial elections
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and a surprising over half of those responding believed that
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elected courts were quote controlled by special interests that my friends is a threat to the
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decisional independence of those courts as my friend bill pryor said the courts
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don't control either the person the sword and some public perception of the courts
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is an important part of judicial independence now obviously in judicial selection
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whatever method you choose whether it be the appointment process in the federal and some state systems or
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the elective process in that area is probably where the
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tension between judicial independence and judicial accountability is probably
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the greatest and that i submit to you is why we spend so much time
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and all of us have spent a good bit of time at this meeting talking about judicial
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selection and judicial terms politics will never be removed
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from judicial selection that's a pipe dream we can't do it there are however
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ways that we can control it i don't know how many of you are are
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golfers i happen to be one but i sort of like in the process to what i've said
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about my sandwich lurking inside every sandwich
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is a two iron trying to get out
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i think it's the same way with judicial selection politics are inherent in the process
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there is nothing wrong with that however like a boiling pot
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that you have a lid on at some point the lid blows off and the question becomes can you simply
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turn down the temperature enough that you don't blow the lid off i submit that we are in a situation now
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particularly in state court elected politics where the lid has blown off
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or that two iron trying to get out of my sand wedge has reappeared
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now i mentioned that this is not necessarily i think limited to the state selection
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system although clearly less of a threat
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the federal selection and confirmation process in my view has still become recently
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overly politicized at times ranker and sometimes
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bitter and partisan confirmation battles have taken place uh
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interestingly at the presentation yesterday professor bill kelly mentioned one way that he had seen from
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his standpoint of working in the white house that perhaps there might be a better
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mousetrap it's interesting because the model that he cited was the commission model used by the two
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democratic senators in california to recommend republican nominees to the bush white house indeed that is
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exactly the model that the american bar association proposes
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and adopted at our meeting in new york in august that the senators put together
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bipartisan citizens commissions to recommend not to dictate what to recommend names
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to the senators who could then recommend names to the white house not trying to take
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away either nomination or confirmation obviously you can't do that those are constitutional
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but in the eight states that that process is being used in quite frankly the lid has generally been
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kept on that boiling pot of politics let me mention to you some other threats
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that i have seen in traveling across the country
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judge pryor mentioned the jail for judges in south dakota i am going to mention that this was a
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threat to judicial independence directly it would have removed judicial immunity
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which i believe we all can agree is an inherent part of judicial independence the judges are
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immune from civil liability or criminal liability for their decisional
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actions the jail for judges initiative when first hold was polling
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well in excess of 70 yes it was only by a remarkable
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combination of the organized bar the
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south dakota bar association the business community that that ballot initiative was
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ultimately defeated that however is not the only valid initiative that has been
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in play in the past few years there have been one valid initiative and one attempt to
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put a ballot initiative on the ballot in colorado this was another
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out-of-state funded ballot initiative that would have so severely term-limited colorado judges that they could never
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invest in the state retirement system it was narrowly defeated the first time
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it came up and then last year i was meeting with the colorado bar and they were quite afraid that it was going to come
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up again in fact the petitions were being circulated luckily that did not get sufficient
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names on the petitions to make it to the ballot but it was a concern of the colorado bar and the judges in
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colorado that it would be a threat to judicial independence
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i'm going to mention just just a couple of others that i've seen and i've heard from our
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associations one of course is unjust criticism
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i'm not talking about just any criticism i'm talking about unjust criticism
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of judges and judicial opinions there is a line there all of us can probably draw it at some
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point but i think there are some points along that continuum of which we can all agree
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when someone in congress says i disagree with the decision
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of the 11th circuit of judge pryor i think we ought to impeach the entire panel because of that decision that's a threat
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to judicial independence we shouldn't be impeaching judges simply because a person in congress decides they don't
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like the opinion uh fortunately for us this year in the
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presidential elections the candidates did not make the courts of political football and i commend both
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campaigns for doing that at the american bar association we were
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prepared in case that happened we believe preparation is better than reaction we were also prepared
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if there were election contests fortunately we also didn't have to deal with that eventuality
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there are others that have been mentioned jurisdiction stripping
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funding indeed at the state court level with probably only two exceptions
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lack of funding is a threat to judicial independence it is so much so that the american bar
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association is teaming with the national center for state courts to have a fair and independent
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court summit in may one of the centerpieces of which will be to have delegations led by the chief
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justice of we hope at least 25 states i think we've got 18 committed so far
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a representative of the executive branch and a representative of the legislature to talk about the importance of adequate
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funding for the third branch of government here we're clearly talking about not
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decisional independence but institutional independence of the judiciary
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and quite frankly i couldn't talk about funding without talking about salaries
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particularly at the federal level although quite frankly there are several state courts as i'm sure you know that
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linked the state court salaries to the federal salaries there are certain percentage of the federal assets
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as judge pryor indicated chief justice roberts has called this a threat to judicial independence and
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indeed the situation as we stand today is unless congress acts in this lame duck session
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congress will get a cost of living adjustment but federal judges will not that
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i submit is unconscionable and i also submit that if one
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of the important parts of judicial independence particularly at the federal level is no diminution in pay
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it's a little hard to see how the cost of living adjustments and pay
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increases that have basically only brought them up to the 1995
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level is not a decrease in their pay because of that
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the american bar association has been working with many groups to lobby capitol hill for a
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much needed pay increase in congress we obviously got very close this year
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didn't quite get the ball across the goal line hopefully however alabama will in the
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iron mode next weekend but those are some of the threats that i
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see at both the state and the federal level to judicial independence thank you
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uh judge pryor do you have any comments in response well um there was a lot there
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i i have several disagreements uh i don't think that um
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i think first of all it is important for us to remember what we're we're talking about when we
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say judicial independence not everything that affects the quality
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or the best work of the judiciary
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