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)
Full Article & Source:
A Judiciary Both Independent and Accountable
