Seiniger Weighs in on Criticizing Judiciary
Attorney’s Should be Allowed to Freely Criticize Judiciary
This article was an editorial submission to the Idaho Stateman published on Friday, February 7, 2003
Judicial independence has become a hot topic in Idaho and across the nation. Respecting the free speech rights of lawyers and adopting rules for the disqualification of justices who appear to lack impartiality are the surest means of reinforcing judicial independence.
The US Supreme Court recently held that rules prohibiting judicial candidates from announcing positions on issues they might decide as judges violated the First Amendment. That decision, the skyrocketing cost of campaigns, the growing influence of soft money promoting candidates linked to issues, and the inherent sensationalism of electronic media combine to pressure judicial candidates to pander to the agendas of special interest groups.
The remedy some suggest, public judicial campaign financing, is unlikely to be effective. Public financing will not keep pace with private financing, and it is unlikely that a candidate could receive funds without the eventual imposition of some form of content-based censorship.
Fortunately, the judiciary is in a unique position to neutralize this threat to its independence. Unlike the executive and legislative branches, the judiciary has a means of preserving actual and perceived impartiality. Idaho’s Constitution speaks of the disqualification of members of the Supreme Court, though it has no procedural rules for disqualification by parties. Even federal judges appointed for life are required by statute to disqualify themselves when there is an appearance of lack of impartiality.
Just as parties have a right to disqualify a trial judge to ensure impartiality, parties on appeal should have the right to disqualify appellate justices if 1) a justice has made an extra-judicial statement of position on an issue in the case before him or her, or 2) if a justice was supported publicly, directly or indirectly, in a bid for office by an issue-focused group or media campaign suggesting that the justice would be likely to vote in favor of a particular position. Then special interest and issue-focused media campaigns would elect only justices destined to be disqualified on cases involving that issue. Judicial candidates who pander to special interests by making statements evidencing a lack of neutrality would simply be disqualified. The Idaho Supreme Court should quickly adopt rules for the automatic disqualification of justices under circumstances linking them to special interests and issues.
Our judiciary also needs to grant lawyers the same right of free speech regarding judicial candidates enjoyed by other citizens. An Idaho Supreme Court decision essentially keeps lawyers from stating opinions as to the political motivations of a judge unless such motivation has been admitted.
A layer was sanctioned for stating he believed that two judges’ decisions differed from another since one “wasn’t worried about the political ramifications.”
That was held to insinuate that the lawyer had knowledge of facts in the two cases and that one judge based his decision on “completely irrelevant and improper considerations,” – thereby impugning the judge’s integrity. The court held that the statement was false and not protected by the First Amendment, since it was agreed that the judge would have denied the charge under oath, and the lawyer had no proof to the contrary.
The public deserves to hear the candid opinions of lawyers familiar with judicial candidates concerning matters of character as well as legal scholarship. At present, lawyers who publicly draw such inferences risk their license. That flies in the face of common sense. If we truly believed that judges were capable of deciding cases without consideration the political ramifications, there would not be a nation-wide debate on judicial independence, or the debates that surround US Supreme Court appointments.
Automatic disqualification of judicial candidates who allow themselves to be linked to special interests and unmuzzling their most knowledgeable critics is the surest road to an independent judiciary.