I was fortunate enough to guest blog over at Prawfsblawg during the month of February, and touched on a number of topics related to court organization and resource dependency. In case you missed them the first time around:
As reported here. The legislation dates to 2015, but it has become freshly salient in light of the Chief Justice’s push for judicial pay hikes and the Governor’s request for across-the-board pay hikes for top elected officials. Key graf:
One downside to Colorado’s approach: It could make it harder for lawmakers to consider judicial pay increases on their own merits. What happens, for instance, if a lawmaker believes judges are underpaid, but feels that lawmaker pay shouldn’t be increased?
This is the first in a series of occasional posts, highlighting scholarship and writings on the relationship between the court system and its external environment.
Tenth Circuit Judge Deanelle Reece Tacha’s 1995 article, Independence of the Judiciary in the Third Century, offers a short and engaging summary of the dependency issues that the federal courts faced at the end of the twentieth century. Much of her description and analysis is equally relevant today.
Judge Tacha notes from the outset that “[e]xamining the independence of the judiciary and perceptions about its erosion requires that one see the issue in both the institutional and the individual sense.” It is natural, and in a sense traditional, to think of independence in terms of tenure protection. But while life tenure protects individual judges from the vagaries of the political climate, it does not protect the judiciary as a whole from resource-related strains.
The Wall Street Journal posted a nice article this weekend on the role of the American bar Association in reviewing and rating federal judicial nominees. (I was quoted, which was also nice!) It gives a good summary of the ABA’s rating process and the history behind it.
The ABA ratings have had their share of controversy, and in an age where everything is increasingly politicized, we should not be surprised if controversy continues. But the ABA’s overt avoidance of political/policy questions, and deliberate focus on the qualities everyone would expect of a good judge (appropriate demeanor, high level of competence, intelligence and legal skills, etc.) make it a worthwhile addition to the overall vetting process. Nor is the ABA alone: similar criteria are used by state judicial nominating commissions across the country.
The ABA’s involvement also underscores an oddity of federal judicial selection: almost everyone gets a say in the timing and substance of judicial nominations except the courts themselves. I’m hard pressed to think of another sizeable organization that is so constrained in hiring its core employees.
If you hit a subscription wall, a PDF of the article is here.
I spent much of my legal career thinking of courts as part of the environment in which others operate. Individuals, businesses, and government agencies looked to the courts to settle specific disputes and provide guidance about the law. Courts therefore influence society every day, both directly and indirectly.
What I failed to fully appreciate is that society strongly influences courts as well. Other government branches, the legal profession, the media, and the public at large affect the way courts operate. The influence is usually not front page news, although it can be when the President publicly challenges a court decision (as the last two presidents have done), or when special interest groups threaten to vote state judges out of office. Frequently the influence is less newsworthy but more pronounced: a new statute that floods the courts with litigation, or delay in filling judicial vacancies, or budget crises that shutter courthouse doors and slow the wheels of justice.
Over the years, I have researched and taught on a wide range of topics related to the judiciary and the court system: judicial selection and evaluation, independence and accountability, judicial decision making, litigation case management, public perceptions of fairness and legitimacy, judicial reputation, bench presence, the exercise of judicial discretion, and ethics. Recently I have come to see that they are all parts of the same elephant. Courts are complex organizations, with challenging missions and multiple audiences. This blog is an effort to track more systematically the ways in which courts interact with their environments.
Courts need resources from the external environment to survive, and in turn they contribute their own resource–the resolution of disputes through adjudication–to society.
“Interdependence is the reason why nothing comes out quite the way one wants it to.” — Jeffrey Pfeffer and Gerald Salancik
It is a common refrain that the judiciary should be independent: judicial decisions should be fair, impartial, and not influenced by other branches of government or powerful interests. But even courts that are independent in their legal decision making are not fully free from the influences of their environment. Courts are resource-dependent: they rely on legislatures for funding, staffing, and jurisdictional authority. They rely on attorneys for professional support and expertise. They rely on prosecutors and the public to produce a steady stream of cases for the courts to resolve. And they rely on all these groups for their most important resource: legitimacy.
In this sense, courts are more accurately described as interdependent. They need resources from the external environment (organizations and people outside the court system) to survive, and in turn they contribute their own resource–the resolution of disputes through adjudication–to society.
This fact is both obvious and underappreciated. Interdependence affects court structure, administration, organization, strategy, behavior, and external relationships. The primary purpose of this blog is to highlight instances of court interdependence worldwide. And we will try to test out some theories and refine our conclusions as we go along.