EDITOR'S NOTEBOOK

Court advocates argue judges should be held to different standards

Members of the legal community have launched a counterattack on what they call "bench-bashing," a practice they describe — with some justification — as a rise in undue personal and political "attacks" on the judicial system.

Now a judge has entered his opinion on the subject. As he announced his decision to cut short his term and step down from the state's highest court last month, Supreme Court Justice John L. Nickels argued the independence of the judiciary is threatened when special interests, and the media, misstate the facts about court decisions and target judges for unpopular rulings.

"There are many examples of attacks on judicial independence," Nickels said, "and they seem to be more numerous and the attacks more vicious as time passes." Nickels made the comment at the Illinois Supreme Court's annual dinner, co-hosted by the state and Chicago bar associations.

Indeed, there have been enough recent examples to support his argument. Case in point: A Tennessee supreme court justice lost a retention election after she joined the other justices on the court in calling for resentencing in a capital case. Conservative activists targeted the decision, and the judge, as being anti-death penalty, a distortion of the facts. In Illinois, a Cook County judge was unsuccessfully targeted in last fall's retention election because of a single

'While the executive and the legislative branches of government are more directly impacted by popular demand, our judges and courts must follow our laws and constitution.'

opinion in a high-profile case. In fact, special interest groups are stepping up political threats to judges in this state, including those on the high court, for rulings unfavorable to their causes.

But what has begun to concern some legal scholars, lawyers and judges, including Nickels, is that tactics aimed at bringing courts to political and social heel are becoming more generally acceptable.

"Bench-bashing,"Nickels said, "used to be confined to the fringe of society. Unfortunately, it has moved closer to the mainstream. Today's critics can be the president of the United States, state governors, state legislators, prominent members of Congress, and yes — even members of the bar — seemingly each with their own personal agendas."

But Nickels had a few words, too, for judges and lawyers. "I think we must first look to our own house," he said. "If every day, every judge, in every courtroom, would perform their functions in a proper and respectful manner, it would do wonders for the public image of the judiciary."

Further, he said, judges cannot be "social architects" and they must not be swayed by "public opinion or clamor."

"While the executive and legislative branches of government are more directly impacted by popular demand," Nickels said, "our judges and courts must follow our laws and the constitution. We all have a duty to support and protect an independent judiciary."

Meanwhile, some members of the legal community have begun discussing ways to defend judicial independence. They've launched a public relations strategy designed to explain to the public the importance of the rule of law in a democratic society and the responsibility judges have for upholding it. Just after the November election, for example, the American Judicature Society sponsored a forum on judicial independence at the University of Illinois at Springfield.

But their task won't be easy. The process for selecting judges in Illinois calls for a kind of cognitive dissonance. The most difficult concept for the public to grasp may well be that, while judges are subject to election in this state, they are not accountable to the political will in quite the same way as other public officials. 

4/ January 1999 Illinois Issues