To build those customs, habits and expectations requires time and support—not only from the bench and bar but also from the community where the judges serve.
Unfortunately, it may prove easier to dismantle that independence than to attain it. And that, as I have said, is why I think it is important that we explain, not just to lawyers or other judges, but to our fellow citizens, why that independence, which is so important to us as members of the legal community, should be important to them as well.
But how can we quickly and easily explain that concept and its necessity to an ordinary person, with his own concerns, often pressed for time, say as he makes his way into the Star Market at the end of a busy day? Our typical shopper might not be interested in an abstract explanation of a highly abstract concept. He might want to know just what that notion means, how it helps him or her, in daily life.
It would be easiest for me to begin to explain judicial independence by pointing to the negative, its very opposite. This event occurred not long after Boris Yeltsin was elected President of Russia, and I remember him announcing to the assembled judges that he intended to institute a large judicial pay raise.
Not surprisingly, the Russian judges greeted this announcement with enormous cheers. Telephone justice, I subsequently learned, occurred when the party boss called judges and told them how to decide the outcome of a particular case. And the assembled judges spoke about the practice very frankly. When the judges were asked why they would pay attention to the wishes of the party boss or even take his call, the judges explained that they needed apartments and that they wanted to put their kids in good schools.
The Russian judges, in turn, asked me whether telephone justice exists in the United States. When I told them that we do not have such a practice, the Russian judges looked at me incredulously. What happens, the judges asked, when the politicians who helped you obtain your judgeship call in a favor regarding a pending case? Again, I told them that no such call would be placed. It eventually became clear that they thought that I was merely being discreet in an effort to protect my supporters. And as I spoke further with the Russian judges, it became evident that, much as they disdained telephone justice, that they had difficulty conceiving of a real-world legal system that operated without telephone justice.
I hope, however, that eventually I convinced them that telephone justice plays no part in our legal system. This example may help our Star Market shopper understand that telephone justice—the absence of independence—amounts to no kind of justice at all.
But that shopper may still wonder what concrete benefits the presence of judicial independence confers. I might point out to our shopper that he still must pay for his groceries. And I could add that I once heard Alan Greenspan, former Chairman of the Federal Reserve, speak about economic development in foreign countries.
Chairman Greenspan said that if he could wave a magic wand and establish a single institution that is necessary for the growth of underdeveloped nations, he would create a judiciary that would decide contract cases in a manner that was neither corrupt nor dishonest. That is to say that he would create an impartial judiciary that possessed the independence to dispose of financial cases fairly and consistently.
Without impartial judges deciding contract cases, Greenspan noted, citizens in developing nations will not make investments because those investments would be insecure and subject to the vagaries of an arbitrary judiciary.
And without investment, of course, there can be no economic prosperity. It is perfectly reasonable to see a connection between judicial independence in America and the enormous array of goods spread out before us in the store as well as the unprecedented financial security that permits Americans to buy them. But much more than our wallets are at stake.
Rather, it establishes a democracy of a certain kind. It divides power, vertically between States and the federal government and horizontally among three federal branches so that no individuals or single branch of government can amass too much power.
It understands that the majority can oppress the minority. And it offers protection to minorities in the form of guarantees of fundamental rights. The concept of a minority is not limited to racial minorities. Indeed, during the course of our lifetimes, we are all minorities in one respect or another. Our shopper will understand that. He will understand that our Constitution guarantees a fair trial even to the most unpopular individual in the United States. There are similar eligibility requirements for provincial and territorial appointments.
All federally appointed judges are appointed by the Governor in Council. This consists of the Governor General acting on the advice of the Prime Minister for judges of the Supreme Court of Canada and chief and associate chief justices in the provinces; and on the advice of the Minister of Justice for all other superior court judges.
In general, most judges have spent years in courtrooms or in the practice of law, and have extensive knowledge of court processes and the role of the judge. The National Judicial Institute delivers programs for all federal, provincial, and territorial judges.
The Institute is funded by each level of government, and regularly offers courses for new judges. Each jurisdiction in Canada has a judicial council that is responsible for promoting and administering professional standards and conduct.
For provincially and territorially appointed judges, each province or territory has a judicial council. Its members include judges, lawyers, and members of the general public.
Judicial councils develop policies and codes of conduct to provide guidance for judges. It promotes efficiency, consistency, and quality judicial service in these courts. Their purpose is to help judges ensure that they maintain their independence, integrity, and impartiality. If it finds evidence of serious misconduct, the CJC may recommend to the Minister of Justice that the judge be removed from office. Follow Ballotpedia. Click here to follow election results!
Judicial independence and judicial accountability describe two competing visions of the relationship of judges to the rest of society.
Judicial independence is a term that has two distinct meanings as it applies to matters of the judiciary. In one context, it refers to the idea of separation of powers, called institutional independence, where the judiciary is kept separate from other branches of government.
The main reason for establishing judicial independence is to avoid improper influence on the court from the other branches of government.
The other commonly used context is called decisional independence, and it refers to an ideal whereby judicial decision-making is able to exist free of undue influence from outside agents who are acting from partisan or special-interest motivations, rather than being motivated by the demands and ideals of justice.
The phrase judicial accountability describes the view that judges should be held accountable in some way for their work. This could be public accountability—getting approval from voters in elections—or accountability to another political body like a governor or legislature.
As described on the blog Ratio Juris , "judicial independence and judicial accountability seem to pull in opposite directions. On the flip side, a judge that is completely accountable may feel pressured to rule in ways that please those to whom the judge is accountable.
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