Preserving judicial independence.

In 1996, Tennessee Supreme Court Justice Penny White lost a retention election because she joined in a decision in a death penalty case. The bitter, inflammatory campaign waged against Justice White included mailings that graphically described the convicted defendant's brutal rape and murder of a 78-year-old woman. Justice White was blamed for ensuring that the defendant did not get "the punishment that he deserves."

Justice White's position was mischaracterized as being that the murder-rape was not "heinous enough for the death penalty." Other mailings told voters that the retention election was a referendum on capital punishment and urged an end to courts putting criminals' rights before victims' rights.

The reality was that the court, in an opinion written by another justice, found that there were substantial procedural problems in the sentencing hearing and remanded the case for a new sentencing hearing only. The court otherwise affirmed the defendant's conviction.

The vicious campaign against Justice White succeeded in unfairly tarnishing her in the public's eye and resulted in her removal from office. Immediately after this election, Tennessee Gov. Donald Sundquist made the following frightening observation: "Should a judge [when making decisions] look over his shoulder about whether they're going to be thrown out of office? I hope so."

All of us who believe that judges ought to decide cases based on the law should be chastened by Justice White's defeat and by Sundquist's statement. The independence of our judiciary is too important to be put to a referendum each time an unpopular decision is rendered. When criticism of judges rises to the level of political intimidation--either by targeting state judges for election defeat or by threatening impeachment simply because of an unpopular decision--it undermines the integrity and impartiality of judicial decision making.

A recognition of the importance of an independent judiciary, has long existed in our country. In the Declaration of Independence, Thomas Jefferson prominently criticized the fact that King George III "made judges dependent on his will alone." British judges who ruled against the crown lost their jobs and maybe more.

By establishing an independent judiciary in the Constitution, our early leaders recognized the central important role that fair and neutral judges have in a nation based on the rule of law. President George Washington expressed this recognition in his statement that "the true administration of justice is the firmest pillar of good government."

President Washington's charge to us is as important today as when he uttered it. If left to fester, public misinformation can endanger the ability of our courts to mete out evenhanded justice as "havens of refuge for those who might otherwise suffer because they are helpless, weak, [and] outnumbered...." (Justice Hugo Black, Chambers v. Florida, 309 U.S. 227,241 (1940).)

To respond to these organized campaigns against individual judges and our legal system as a whole, I have appointed a Judicial Independence Committee consisting of judges from the highest courts in 15 states and an equal number of prominent ATLA leaders. I urge every state trial lawyer association to establish a similar committee. The program for ATLA's Judicial Independence Committee includes:

* creating a capacity to respond rapidly to the unjust criticism of judges or the courts when the failure to do so will adversely affect the fair administration of justice, either in a specific case or more generally,

* devising a workable educational program that advances public understanding of the role of courts and judges and the importance of maintaining an independent judiciary, and

* providing a forum for discussion between judges and the trial bar about other threats to judicial independence and the steps that might be taken to alleviate those threats.

The rapid-response function will be coordinated with our state trial lawyer associations, which are better able to ascertain the local facts at issue and answer misguided criticisms before they will have made an indelible imprint on the public mind. The educational program will reach out to the media, adults, and young people to create an ongoing appreciation for the most well-developed system of justice in all the world. Finally, the committee will collect and disseminate information about other dangers to judicial independence that require a concerted response from the bench and bar.

There is no more important foundation for a democracy than a strong and independent judiciary. The escalating political attacks on our judiciary hold great danger for every American and for the ideal of a system of justice that works for all.

We need to devote extraordinary effort to protect our judiciary from unfair, inaccurate, and unfounded attack. We are full partners with our courts in the obligation to defend our system of justice. With that in mind, we need to be vigilant in our efforts to protect the objectivity and independence of our judiciary.

In friendship,

Mark S. Mandell