Tuesday, March 18, 2008

Judge William Pryor: "Not-So-Serious Threats to Judicial Independence"

(Hat tip: Feddie)

Federal Judge William H. Pryor, Jr., writing for my alma mater's Virginia Law Review, argues "that the independence of the federal judiciary is secure" and "that contemporary criticisms and challenges of the judiciary are relatively mild and, on balance, beneficial":

TALK of judicial independence is all the rage. In recent years, leaders of the Bench and Bar have decried what they describe as unprecedented assaults on the independence of the federal judiciary. The most prominent leader of this chorus has been a distinguished American and public servant, retired Associate Justice Sandra Day O’Connor. At the annual meeting of the American Law Institute in May of last year, Justice O’Connor thanked the Institute for its defense of judicial independence, which she described as under “the most serious attack” in her lifetime. On September 27, 2006, in an op-ed entitled “The Threat to Judicial Independence,” published in The Wall Street Journal, Justice O’Connor stated that “the breadth and intensity of rage currently being leveled at the judiciary may be unmatched in American history.” The next day, at a conference jointly sponsored by the Georgetown University Law Center and the American Law Institute, Justice O’Connor complained of the “common mantra” about “activist judges” and “a level of unhappiness today that perhaps is greater than in the past and is certainly cause for great concern.”

I respectfully disagree with the conventional wisdom of the Bench and Bar. I submit that the independence of the federal judiciary today is as secure as ever. The current criticisms of the judiciary are relatively mild and, on balance, a benefit to the judiciary. I am sympathetic to a call for an increase in pay, as my spouse, a certified public accountant, frequently reminds me of the opportunity cost of public service, but to say that our current pay is a threat to our independence is an exaggeration. As a federal judge whose nomination and confirmation generated controversy and a filibuster — there was even litigation about my earlier recess appointment — I believe that the appointment process, on the whole, is beneficial to the independence of the judiciary.

A brief review of the history of the federal judiciary suggests that there is a tested method of defending our independence: to respect the limits of our authority. From the beginning of this great Republic, the federal judiciary has been revered by many, but during its most challenging periods, the judiciary wisely has acted with restraint. When we consider how best to maintain judicial independence, now and in the future, we can learn a lot from history.

Some might argue that a grueling and highly political process of appointing federal judges discourages talented lawyers from serving and enhancing the independence of the judiciary, but I doubt that the unwillingness of some to serve necessarily diminishes judicial independence. Many talented lawyers, no doubt, are not attracted to the difficulties of public service, including the lower pay and potential unpleasantness of a political contest as a prelude to holding office. The same can be said for other forms of public service. Are the potential nominees who are not attracted to the hardships of public service necessarily the best candidates to be independent judges? An independent judge must be willing to make difficult, unpopular, and even courageous decisions when the law so demands.

There is a good argument that those who are willing to endure the hardships of a controversial appointment may be more independent than others, and there is anecdotal evidence to support this argument...

At the end of the day, the process for appointing judges, which the Framers considered a matter of accountability to the people, is not nearly as unpleasant as the election campaigns that the appointing Presidents and Senators have to mount. I know: I have endured both. Given a choice between raising the funds, shaking the hands, traveling from city to city, speaking on the stump, eating the proverbial rubber chicken, responding to the attacks of an opponent, and filming the ads involved in a statewide election campaign, on the one hand, and responding to the questions asked in the confirmation process, on the other hand, I would choose the confirmation process every time. In most states, judges have to suffer the hardships of election campaigns periodically, so federal judges have little about which to complain.

(emphasis added)

My Comments:
Feddie calls it a "must-read article". I agree. If the federal judiciary (and appointments thereto) is a subject that interests you, I'd definitely recommend that you read the whole thing.

Previous Pro Ecclesia posts on this subject:
Supreme Court Justice Ruth Bader Ginsburg Happy With Democrat Congress

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