Academic journal article Fordham Urban Law Journal

Judging Judges: Securing Judicial Independence by Use of Judicial Performance Evaluations

Academic journal article Fordham Urban Law Journal

Judging Judges: Securing Judicial Independence by Use of Judicial Performance Evaluations

Article excerpt


The current national debate surrounding judicial independence arguably began in 1996 when both presidential candidates engaged in disingenuous political rhetoric about United States District Judge Harold Baer. (1) The national discussion about judicial independence (2) is by no means a new discussion. It dates back to the early common law, (3) the formation of the American democracy, and the constitutionalization of the American judicial system.

When the colonists declared their independence from England, they compiled a list of grievances setting forth justifications for their actions. One of the listed grievances against King George III in the American Declaration of Independence concerned the King's control of the British judiciary. Categorizing the King's control of the British judiciary as an obstruction of justice, the patriots declared that "[the King] has made Judges dependent on his Will alone for the Tenure of their Offices, and the Amount and Payment of their salaries." (4) Control of the judiciary, however, was not a creation of King George III's reign. (5) It predated his reign by decades, and in fact had been somewhat ameliorated prior to George III's reign when King James II was deposed during the Glorious Revolution of 1688. (6)

Nonetheless, at the time of the American Revolution the founders of the new country remained concerned about a controlled judiciary. (7) Although comparatively little time was spent debating and structuring the judiciary in the proposed three-branch government, the proposed Constitution provided for permanent tenure for federal judges "during Good Behaviour" and forbid any reduction in federal judicial salaries. (8) The federal judges were empowered to hear a large variety of cases, although Congress maintained the authority to expand or contract the size as well as the jurisdiction of the courts. (9) Additionally, the intermingled tripartite system of government with its "great organizing principle, the separation of powers" doctrine, (10) reiterated the commitment of the founders to a separate and independent judiciary.

The commitment to the formation of a new government with an independent judiciary in no way assured that the doctrine of judicial independence would not be challenged. From the very beginning of the American judiciary (11) until the Judge Baer fiasco in 1996 and after, (12) the doctrine has been questioned, challenged, and at times, fiercely opposed. (13)


One who clearly understands judicial independence cannot comprehend how it could be opposed. A judiciary that is not independent of the other branches of government is subject to their control. Judicial decisions would be influenced, if not dictated, by political pressures, threats, and intimidation. A nation whose judiciary was controlled by the legislative or executive branch would offer no stability to its citizens or corporations as to their legal rights or responsibilities.

The effect of a controlled judiciary is often illustrated by reference to intrusion upon personal liberties. The effect of a dependent judiciary on commercial interests, however, would be equally devastating. Consistent enforcement of contract rights, zoning laws, and employment regulations are crucial to business development. The coexistence in America of a stable, independent court system and a thriving national economy is hardly coincidental. Investors and developers cannot risk doing business in an unstable legal environment where their legal rights depend on who is in power. They depend on uniform application of the law by a judiciary that is not swayed by either majority opinion or political power, but is instead guided by precedent and the rule of law.

If no free-enterprise capitalist could sensibly oppose judicial independence, why do so many of our national leaders assert positions in direct conflict with it? …

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