Meanwhile, Bloomberg News offers up a detailed analysis of the reform proposals here. I cannot speak for the credibility of the author, but it appears to be a useful read.
Several months’ worth of rumblings over the fate of the Polish judiciary came to a head this week when the country’s legislature debated a controversial judicial reform bill. Like the judicial crisis in Ireland that unfolded earlier this summer, the Polish controversy is worth unpacking and monitoring closely.
The reform bill discussed this week was shepherded through the legislature by the Law and Justice (PiS) Party, a populist, conservative party that has been in power since 2015. The bill would give legislators and the Justice Minister the power to appoint new judges without input from the judiciary. It would also create a new code of ethics for the country’s judges. A second bill would require all Supreme Court Justices to resign (unless permitted to stay by the Justice Minister), and new Justices appointed in their stead. The PiS leader, Jaroslaw Kaczynski, has justified the moves by saying that the country’s judiciary had not sufficiently reformed from its communist past, and that “radical changes” were needed.
Opposition leaders and other European observers have painted the bill as a power grab that would compromise judicial independence and threaten the rule of law, and have even asked for international oversight of the vote on the bill. On Sunday, thousands of protesters jammed the streets of Warsaw to protest the legislation.
What should observers make of this?
“An American judge … cannot compel the people to make laws, but at least he can constrain them to be faithful to their own laws and remain in harmony with themselves.”
“I am aware of a hidden tendency in the United States leading the people to diminish judicial power; under most of the state constitutions the government can, at the request of both houses, remove a judge from office. Under some constitutions the judges are elected and subject to frequent reelection. I venture to predict that sooner or later these innovations will have dire results and that one day it will be seen that by diminishing the magistrates’ independence, not judicial power only but the democratic republic itself has been attacked.”
“I do not know whether a jury is good for litigants, but I am sure it is very good for those who have to decide the case. I regard it as one of the most effective means of popular education at society’s disposal.”
— Selected from Democracy in America (13th ed. 1850)
There is currently an effort in Santa Clara, California, to recall Aaron Persky, the Superior Court judge who gave an extraordinarily light sentence to former Stanford swimmer Brock Turner last summer after Turner was found guilty of sexual assault. Persky sentenced Turner to six months in county jail, far short of the recommendations of prosecutors, after Turner was found to have sexually assaulted a drunk and unconscious woman behind a dumpster.
Turner’s actions were hideous, and it is certainly understandable why a light sentence would be greeted with surprise and even outrage. And Judge Persky’s standard defense–that any challenge to his discretion would compromise judicial independence–sounds almost ridiculous in this context. But the recall effort is still a terrible idea.
The controversial appointment of Maire Whelan to Ireland’s Court of Appeal continues to ruffle the country’s new government. This week, Transport Minister Shane Ross proposed a bill to create a new Judicial Appointments Commission. The new commission would have a majority of non-lawyer members, and would be chaired by a non-lawyer. The commission would select final nominees, who would then be chosen by the government.
The bill immediately came under fire from Fianna Fail, the political party whose support is necessary to uphold the government’s confidence and supply agreement. The proposal was also publicly criticized by prominent members of the judiciary.
This blog has been closely following the appointment of former Irish Attorney General Maire Whelan to that country’s Court of Appeal last week, which has engendered enough controversy to threaten to bring down the new government. Whelan accepted her appointment on Monday, but that hardly ended the matter. On Wednesday night, the Dail (Ireland’s parliament) held a lengthy debate over the propriety of the appointment. According to one story:
A two-hour debate was held in the Dáil to discuss the appointment last night.
It became extremely heated.
New Minister for Justice Charlie Flanagan said a new bill was part of the government’s aim of “entirely reforming the judicial appointment system”.
Jim O’Callaghan dismissed the claim that Cabinet confidentiality prevented the answering of essential questions on the matter.
Sinn Féin’s Mary Lou McDonald, meanwhile, said that Micheál Martin – who wasn’t present for the debate – had serious questions to answer based on a telephone call he had with the Taoiseach on the matter last Sunday.
She questioned whether Martin attempted to use his influence on the government to prevent Whelan being appointed.
Labour leader Brendan Howlin took aim at the Independent Alliance who, he claimed, “clapped through an appointment that they now oppose”.
Clare Daly said the appointment was legal, but “political”.
Mattie McGrath said “new politics, my foot”.
Sinn Féin’s Jonathan O’Brien got into a war of words with Minister Flanagan, after asking how many others applied for the role.
Today, Taoiseach Leo Varadkar was asked if the situation had affected Fine Gael and Fianna Fáil’s confidence and supply arrangement. “Obviously the week that has gone by I don’t think has been helpful for either party,” he said. “But we have a written agreement.”
We’ll continue to watch how this plays out.
The controversial appointment of former Attorney General Maire Whelan to Ireland’s Court of Appeal last week continues to draw headlines. Minority parties in the government have alleged several improprieties with the appointment, including that Whelan never formally applied for the post through the Judicial Appointment Advisory Board, and that she remained in the Cabinet meeting while her appointment was being debated.