A Judiciary Both Independent and Accountable

The increasingly divisive, special-interest and politically driven view of the judiciary cannot be what we want for our system of justice. It would threaten to make the judge an instrument of ideological tyranny instead of a guardian against it.

This is the text of a speech that Robert Tembeckjian, administrator and counsel to the New York State Commission on Judicial Conduct, gave to newly-appointed and newly-elected judges at the New York State Judicial Institute Jan. 3.

First, let me offer to each of you my congratulations on your ascension to judicial office. As you and your families know, it was not an easy road that brought you here.

Whether elected or appointed to the bench, all of you are at the enviable crossroad of accomplishment and promise. While you have already achieved much by becoming a judge—and it may seem that you have climbed a mountain to get to this point—becoming a judge is only the beginning of the judicial experience. However challenging the journey to reach the bench may have been, it will pale in comparison to the significance of the decisions you will be called upon to make every day, decisions with monumental consequences: the custody of a child, the liberty or incarceration of an accused, the disposition of breath-taking amounts of money.  This is where your path to accomplishment becomes the road of promise. How much or how little you live up to that promise will become, in large measure, your ultimate reputation. Will you be wise or impetuous, fair or cavalier, dignified or coarse?

Clearly, you will not be able to please everyone. If that were your goal, you surely chose the wrong profession. But will reasonable people honestly be able to say that you not only dispensed but appeared to dispense justice, that your decisions were respected even by those against whom you ruled, that you comported yourself in a manner that brought credit to the courts? If so, then at the end of your judicial journey you will have made good on the promise you embody now at the outset of your days on the bench. How rich and important that promise is, for being a judge puts you at the heart of our constitutional governance. There may be no state interest more compelling than the independence, impartiality and integrity of the judiciary.[1]

The Independence of the Judiciary

From the founding of our republic, an independent and impartial judiciary has not only been the indispensable anchor of our tripartite system of government, it has been an immeasurable protector of our most fundamental rights and liberties—ensuring the right to counsel, the right against self-incrimination, the right to a fair trial, the right to free expression, the right to worship. You are now part of that noble protectorate. This may subject you to unfair and certainly unwanted criticism. A prosecutor may denounce your decision to release a defendant on recognizance. A public defender may decry your maximum sentence against a convicted felon. Why, a president may accuse you of being unfair because your ancestry is Mexican—or Polish, Italian, Persian or Armenian, as the case may be—even though you swore to uphold the same constitution he swore to uphold.

Whatever the pressure and wherever its origin, your job is to act at all times, on and off the bench, in a manner that upholds and promotes public confidence in the independence, integrity and impartiality of the judiciary.

Why are judicial probity and fairness so significant? Because public confidence in the administration of justice is what keeps people coming back to the courts and what empowers the writ of our law. As Alexander Hamilton explained in the Federalist Papers and history has repeatedly underscored, the judiciary owes its power not to an army to enforce its will and not to the public purse to fund its mandates, but to the integrity of its judgments. It is confidence in that integrity, and in the principle that the litigant will get a fair shake from an impartial magistrate and a fair-minded jury, that keeps us coming to the courts rather than turning to the streets to resolve our disputes.

Time and again, from the earliest days of our civil society to the present, the courts have stood up to the potential tyranny of the mob and government. Not always, of course. Judges and juries are fallible human beings. Try as they might to get it right, sometimes they get it wrong.  As every trial judge knows, and as you all will surely know soon enough, that’s why we have appellate courts.

But at critical junctures in our history, ordinary citizens, protected by evenhanded judges, have made extraordinary decisions that shaped who we are as a society of laws. When a grand jury refused to indict John Peter Zenger for libel in 1734 but the attorney general charged him anyway, a petit jury acquitted him, and two classic American principles were enshrined before we even had a national constitution: freedom of the press, and truth as a defense. And recently, in California, when a jury found Jose Ines Garcia Zarate not guilty of the heartbreaking murder of Kate Steinle, despite the massive attention drawn to the case because the defendant was a repeat illegal entrant into the United States, another anonymous group of average citizens demonstrated that we are a nation of laws, that a defendant may only be convicted if the proof is beyond a reasonable doubt, that even the xenophobic public pronouncements of a president cannot and should not lead jurors to where the evidence does not go.

Judicial Accountability

As all of you will come to appreciate, the enormous responsibilities incumbent upon the judiciary also come with accountability, not just in terms of appellate review but in the monitoring of judicial conduct.

Every state has adapted the Model Code of Judicial Conduct which the American Bar Association first promulgated in 1924. In the words of its preamble, the code is comprised of “rules of reasons,” as much a guide to ethical judicial behavior as a basis for imposing sanctions for their violation. I am not aware of any public officers at any level of government who are held to a higher standard of conduct, or bound to a more stringent set of promulgated ethics rules than judges.

Nor am I aware of any who are subject to more vigilant ethics enforcement. Every state in this union has an independent judicial ethics enforcement entity such as New York’s Commission on Judicial Conduct.

The Judicial Conduct Commission is not an appellate court. It cannot remand or remit a case, or overrule a court-adjudicated finding of fact or conclusion of law. It cannot reassign a judge to a different term of court of part of the state. It can only investigate and, where appropriate, discipline a judge for failing to live up to the ethical standards embodied in the Code of Judicial Conduct. Even where the commission determines that a judge was unethically motivated to decide a case a certain way and should be removed—say, where it turns out that a close relative of the judge was a party or lawyer in the matter—the determination may only discipline the judge; it has no effect on the court case itself. An aggrieved party would have to seek redress through the courts themselves for the judge’s mal-motivated decision.

The commission investigates and, where appropriate, disciplines individual judges who violate the code. Whether by confidential caution, public admonition, public censure or removal from office, the commission holds the judiciary to account for ethical transgressions and plays an important role in protecting the public from unfit incumbents.[2]

Of course, however justified, to a judge even the mildest discipline stings. It may, therefore, be natural for judges to view the Judicial Conduct Commission with suspicion, as a scold or even as an inhibitor rather than protector of judicial independence. But they would be wrong.

It is true that since 1978, the commission has issued over 800 public disciplinary decisions—every one of them, I would argue, deserved. But it is also true that the commission absorbs a great deal of public criticism that would ordinarily be directed to the judiciary. Those 800 disciplines comprise a mere 1.5% of the more than 55,000 complaints received, processed, analyzed and mostly rejected over that same time frame. In other words, 98.5% of the time, the commission tells a complainant that there was no ethical wrongdoing. In that way, it protects the judge’s freedom and responsibility to call them as she or he sees them.

The recent firestorm of controversy regarding the “Stanford rape case” is a prime example of how a disciplinary commission may actually protect the independence of the judiciary. Whatever your view of the merits of Judge Aaron Persky’s sentencing of former Stanford University swimmer Brock Turner for the sexual assault of an unconscious “Emily Doe”—three months in jail, plus three years’ probation and registration as a sex offender—it was the California Commission on Judicial Performance that answered the public outcry from those who considered the sentence lenient. The California Commission, an independent state agency like its New York counterpart, found that the sentence was lawful and within the judge’s discretion, that he had not been motivated by such misconduct as bias based on gender, race, socioeconomic status and that he was not insensitive to the seriousness of sexual assault.[3]  For its trouble, the California Commission was subjected to fierce political criticism and an investigation by the State Auditor, which tried to pry into its case files, perhaps seeking to uncover other instances of supposedly “lenient” treatment of judges by the commission. It was a California court that upheld the confidentiality of the commission’s files and rendered them off limits.

We have had similar experiences in New York. For example, in a landmark 1984 case, Stern v Morgenthau, the New York State Court of Appeals held that a grand jury subpoena of commission records had to be quashed because it sought to invade the sanctity of the commission’s confidential files.[4] To render commission records reachable by subpoena would be to upset the carefully nuanced constitutional system for disciplining judges, which is premised on there being no higher state interest than an independent but accountable judiciary.

In 1997, in Matter of Duckman, a case that generated worldwide attention, the New York Commission threaded the needle between acts of misconduct and discretion.[5] Duckman, a New York City Criminal Court judge, had reduced the bail on a defendant from $5,000 (which he couldn’t make) to $2,000 (which he could). The defendant promptly went out and killed both his girlfriend and himself. The political and tabloid outcry against Judge Duckman was unprecedented. The governor, mayor and Senate Majority leader, among many others, called for his removal. The attention to Duckman brought to light numerous other problematic acts, and the commission determined to remove him from office for inter alia repeatedly making statements that were gender and race insensitive, and for deliberately dismissing accusatory instruments as facially insufficient when he knew they were not, because he did not believe the district attorney should be prosecuting these particular cases. But as to the matter for which the governor and others wanted him removed—the bail reduction that led to murder—the commission dismissed the charge, having determined that it was a lawful sentence within the judge’s discretion, and that it had not been tainted by prejudice or other misconduct. And for our trouble? The governor promptly recommended a cut in our budget, which we had to fight for the Legislature to restore. (It did.)

Public Confidence in the Courts

You as judges, my colleagues and I as ethics enforcers, have important roles to play in protecting the independence of our Third Branch and the public’s confidence in it. That may mean at times acting contrary to popular opinion. It may mean restraint when action would be so much easier and more politically expedient. It may require engaging in some public education, as the California Commission did in the Persky matter, and the New York Commission did in Duckman.

In an age when high public standards and constitutional institutions routinely come under attack, in some instances by the very people who are sworn to preserve, protect and defend them, we cannot let the judiciary become just another casualty of partisan politics or culture wars. Especially when our national executive leadership seems intent on degrading public standards and discourse, and our national legislative body seems to spiral ever downward toward an acrimonious partisan abyss, our state and federal judiciaries can and must continue to demonstrate how to operate above the fray. And our judicial ethics enforcers must continue to show that officers of at least one branch of government are held to the highest standards of conduct, with measurable consequences when they do not.

Perhaps nowhere is the threat to an independent judiciary more evident than the rancorous manner in which we elect or appoint judicial officers. As the US Supreme Court case of Caperton v. Massey Coal and the blood sport of federal judicial nominations all too vividly reveal, special interest groups now spend millions of dollars to affect judicial elections and nominations. In Caperton, millions of coal industry dollars were spent to elect a West Virginia Supreme Court justice who then cast the tie-breaking vote in a case favoring the coal industry. The US Supreme Court found the compromise to independence and impartiality so great as to invalidate the decision.[6]

In United States Senate confirmations, passionate pro-choice and right-to-life groups mobilize their partisans, as do pro-business and pro-consumer groups, pro-gun and gun-control groups, law-and-order advocates and civil libertarians, and countless others. Rarely in these debates do we hear any passion for the idea that a judge should rule with integrity on the facts and law without injecting personal beliefs into the equation. Yet that is the ultimate ideal. A judge who believes in either pro-choice or right-to-life should still be able to decide whether there was trespass at an abortion clinic, on the facts, without ideology.

The increasingly divisive, special-interest and politically driven view of the judiciary cannot be what we want for our system of justice. It would threaten to make the judge an instrument of ideological tyranny instead of a guardian against it.

I deeply believe we have to resist this trend, which brings with it the potential to eviscerate the most distinguishing, liberty-saving feature of our constitutional governance. It cannot be said forcefully enough that there is a compelling, even overriding state interest in the independence, impartiality and integrity of the judiciary. We play with it, and fail to protect it, at our great national peril.

To all of you, as you embark on this new and exciting facet of your careers, I ask that you always keep in mind the higher purpose and calling of your office.  You have chosen and been chosen for noble work. May you do it with wisdom and dignity.

Endnotes:

[1] Raab v. Commission on Judicial Conduct, 100 NY2d 305 (2003); Watson v. Commission on Judicial Conduct, 100 NY2d 290 (2003)

[2] In many states, judicial disciplinary commissions also have the power to suspend a judge. New York’s commission does not have such authority. Source: National Center for State Courts.

[3] https://cjp.ca.gov/wp-content/uploads/sites/40/2016/08/Persky_Explanatory_Statement_12-19-16.pdf

[4] Stern v. Morgenthau, 62 NY2d 331 (1984)

[5] Duckman v. Commission on Judicial Conduct, 92 NY2d 141 (1998)

[6] Caperton v. A.T. Massey Coal Co., Inc., 556 US 868 (2009)

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A Judiciary Both Independent and Accountable