A Fresh Start for the Justice System

Judicature, November/December 2008 | Go to article overview

A Fresh Start for the Justice System


The new administration has a unique opportunity to underscore the importance of an effective system of administering justice and to promote public confidence in that system.

President-elect Barack Obama's plate is piled high with issues: the economy; wars in Iraq and Afghanistan; health care. A cursory review of the nation's most pressing problems might lead one to conclude that the health of America's courts is well down the list until one appreciates the critical role that courts play in grappling with every major issue of the day. As the nation's economic crisis deepens, courts must oversee bankruptcies, mortgage foreclosures, defaulted loans, and labor disputes. In the wake of war, courts must adjudicate cases concerning detainee rights, the propriety of military tribunals, government contracts, and veterans' benefits. And health care woes engender insurance litigation, suits over unpaid medical bills, and health plan coverage. Viewed in that light, the well-being of the nation's courts is inextricably linked to the well-being of the nation itself.

The new administration has ascended to power with the promise of change. One change of critical importance is to restore traditional respect for the judiciary and the rule of law. The nation's courts have recently endured an acrimonious cycle of attacks, led by slogan-wielding politicians and pundits who have decried "judicial activism" and proposed that judges who rule in disfavored ways be punished with impeachment, cuts to their budgets or jurisdiction, or defeat at the ballot box. Indifferent and sometimes hostile legislatures have withheld resources for courts and cost of living adjustments for judges, while mayors and governors from both political parties have sought votes by scoring points at the judiciary's expense.

President-elect and Mrs. Obama are both able lawyers, and as such appreciate the importance of the rule of law and the role of judges in American government. As President and First Lady, they have a unique opportunity to lead by example, to underscore the importance of an effective system of administering jus- tice, and to promote public confi- dence in that system. To those ends, there are several steps that we urge the new administration to take:

* As an initial matter, we fully anticipate that the new administration will take a more restrained and less partisan approach to its oversight of, and key appointments to, the Justice Department.

* In a related vein, we urge the new administration to exercise leadership in restoring a less partisan and acrimonious relationship with the judiciary. Criticism of judicial decisions is healthy and inevitable, but disagreement can be expressed without challenging the legitimacy of the judiciary as a coequal branch of government or threatening to retaliate against the authors of decisions that the President and others do not like. …

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