Judicial Independence and Democracy

By Ed Vopal, President
Wisconsin Association for Justice

January 2012

Presidential Candidate Newt Gingrich recently said that "activist judges" should be compelled to justify their unpopular decisions in Congressional hearings.

Although Mr. Gingrich was discussing federal courts, his idea threatens the judicial independence at every level. His comments provide us with an opportunity to consider the importance of an independent judiciary in Wisconsin.

Americans appreciate the independence of each of the three branches of government.  Legislators create laws, executives carry out laws, and judges review laws.  When a legislature creates a law, it is presumed constitutional.  When there is a challenge to the law, however, our judicial branch interprets the law and, if necessary, rules whether it is constitutional.

Wisconsin has 249 Circuit Court Judges, 16 Appeals Court Judges and 7 Supreme Court justices.  Each judge is selected in a non-partisan election.  Wisconsin circuit court judges hear cases and conduct trials; the appeals courts and Supreme Court review circuit court actions.  The appeals courts correct errors, while the Supreme Court provides final review in cases it accepts for a decision.

The principles of judicial independence and impartiality are critical to maintaining a fair judicial system. We all want judges to make their decisions based on the applicable laws and the facts of the case.  Their decisions, however, should not be compromised purely our of concern for how popular the decisions will be.

In fact, our state's Code of Judicial Conduct expressly asserts the importance of judicial independence: "Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us.  The role of the judiciary is central to American concepts of justice and the rule of law."

Essentially, a judge must be allowed to act fairly, impartially and independently and rule on the laws and facts of a case.  As the Judicial Code requires, "A judge shall be faithful to the law and maintain professional competence in it.  A judge may not be swayed by partisan interests, public clamor or fear of criticism."

Judges should not be threatened by elected officials to justify a decision.  If the public is dissatisfied with a particular outcome after a case has gone through the judicial system, the options are to change the law through legislation, amend the Constitution or elect a new judge at the next opportunity.

Our state Code makes the bottom line clear: "An independent and honorable judiciary is indispensable to justice in our society."  If you don't believe that, visit a place where there is no independent judiciary and the court is seen only as tool of people in power.

The judicial branch plays a crucial role in our democracy at both the federal and state levels.  We should all very carefully scrutinize any ideas that threaten judicial independence, a principle we must stridently uphold and defend.
 
For more information about the Wisconsin Association for Justice, see WAJ's website at www.wisjustice.org, or call 608-257-5741.

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Edward J. Vopal is president of the Wisconsin Association for Justice, and a shareholder at Habush, Habush & Rottier, in Green Bay.

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