Judicial Independence Requires a Cultural Expectation

Expert says judges have obligation to be both independent and accountable

By Stephen Kaufman
Washington File Staff Writer

Washington -- Having a judiciary that can exercise full independence from both legislative and executive pressure helps protect it from changing political viewpoints and private interests.  If the concept of judicial independence is practiced in a democracy, a judge is free to decide a case on the basis of experience, legal precedent and best judgment, as opposed to the whim of popular opinion or the interests of powerful political leaders and private individuals.

In the United States, judicial independence has been a “general cultural expectation,” according to judicial expert Russell Wheeler who participated May 18 in a USINFO webchat conversation with an audience largely from the Middle East.  Politicians should not try to change or influence judicial decisions, he said, adding that if it was discovered that a U.S. president or legislator had summoned a judge to discuss an impending ruling, “it would be front-page news all over the country.”

Wheeler argued that a popular expectation that judges will be independent in their decision-making actually is more effective than the law of the land.

“Our experience is that specific provisions protecting judicial independence are less important than a basic cultural expectation that politicians should not tamper with judicial decision-making,” he said, adding that in the United States, while that view is not universal, “it has a fairly deep reach.”

The obligation for judges to be independent is accompanied by the need for them to be accountable to the public, which pays their salaries through taxes.

“How to accommodate these potentially conflicting obligations is one of the great challenges facing the United States and other democracies,” Wheeler said.

He noted that to help ensure their independence, most U.S. judges have lifelong tenures and secure salaries.  All of the approximately 1,500 federal judges are appointed by the president or other judicial courts; among the approximately 30,000 judges in the U.S. state systems, some gain office through popular elections.

Wheeler said the majority of those elections are uncontested, but expressed some concern over recent competitive judicial elections in the United States that were very expensive for the candidates.

“This creates two problems: judges must seek funds to run their campaigns, and the logical place to turn are lawyers, some of whom will appear before them in judicial proceedings. The other problem … is that judges will be tempted to shade their decisions to appeal to voters in the upcoming elections,” he said.

As for salary, “I believe the legislature should provide judges an adequate salary that is protected from reduction by some basic law, such as the Constitution,” Wheeler said.  But he argued against additional financial rewards, since he said they could set “a dangerous precedent that could lead to selective favoritism toward certain judges.”