SPEECH TO VBA

As Delivered by Chief Justice Jeffrey L. Amestoy

I am grateful to the VBA for this invitation to speak, if for no other reason than a habit of making speeches every election year autumn since 1984 is difficult to break.

This election year I am not a candidate C although I guess one could say I= m an issue.

Some year I= d like to be neither.

In the recent primary, for example, one candidate called into question my qualifications for my current position.

You will understand my natural inclination to respond in kind.

But the same Judicial Canons that have freed me from party politics, chicken dinners, and fund raising prohibit me from engaging in a political debate.

I note, however, that the Canons do not proscribe Judges from making geographical observations. So here= s mine: Rome is very far away from Vermont.

I suppose I should also thank the VBA for providing that intrepid lawyer-historian Paul Gillies with the forum of this month= s Bar Journal to remind us that this is the bicentennial of the only time in Vermont= s history when a Chief Justice lost his job because of political affiliation.

If you have read Paul= s article you know that Chief Justice Israel Smith C a moderate Republican C was denied reelection when legislators voted for a more politically acceptable federalist C the Chief Justice= s brother Noah Smith.

Since reading Paul= s article I have amended my retention statement to indicate that I am an only child.

With my own unlikely path to Chief Justice in mind, I trust you= ll understand why I am somewhat sensitive to the subject of a selection of a Chief Justice.

After all, what can one say about a Chief Justice who had no judicial experience and was clearly the appointing authority= s second choice. Others have written C and I quote C A the pace of events forced the choice.@ And, even more wounding to one= s pride, a Senator said during confirmation hearings C and I quote C A it is advisable to [vote for] confirmation lest another even less qualified and more disgusting to the Bench should be substituted.@

What can one say? Well, one could say that John Marshall C from whose confirmation process I= ve just quoted C turned out to be a pretty good Chief Justice for a second choice.

Of course, John Marshall= s significance to my remarks today is much greater than the comfort his appointment experience provides. It is a truism C but not the less historically accurate for being so C that John Marshall established the independence of the judiciary. He also provides judges C especially appellate judges C with the reminder that it is possible to be independent without being arrogant. One of John Marshall= s most charming characteristics C not unrelated to his accomplishments C was that he was (as described by a contemporary) A a model of simplicity . . . ready to laugh; to joke and be joked with.@ Those of you who have spent any time with Vermont= s summer resident, Chief Justice Rehnquist, would find the description I have just quoted equally apt.

Given the antecedents of judicial independence, it is natural that we think first of the federal system when an independent judiciary is discussed.

Although it is commonplace to compare judicial independence in state courts with the judicial independence of federal judges, what is most striking about the comparison are the differences not the similarities.

Federal judges never stand for election or legislative retention, serve during good behavior until retirement without review of their performance by the legislative branch, and may never have their salaries decreased. In contrast, only 3 states in the country C and none outside New England C have life tenure for judges. Virtually every other state retains its judges by election C and except for a tiny minority of states (Vermont being one), it is election by the public at large, not the Legislature. A 1993 study by the State Justice Institute described eight of the general elections as partisan C the remainder as non-partisan.

That characterization may, however, be in the eye of the beholder, since I note the A non-partisan@ list includes California retention election for Supreme Court Justices. The A non-partisan@ description would probably come as a surprise to my colleague Ron George, Chief Justice of the California Supreme Court, who in combating a concerted political effort to defeat his retention bid, has raised millions of dollars. Chief Justice George spent the last year traveling to every Court in California motivated, I am sure, by something more than an interest in judicial administration.

It is remarkable that state courts have shown a will to look at statutes, constitutions, and the common law rather than the morning headlines, despite the absence of the guarantees in the federal system and despite selection by popular vote. Perhaps Chief Justice Shirley Abrahamson of the Wisconsin Supreme Court, explained it best in stating that A decisional independence . . . arises out of the judge= s training, oath of office, and social and cultural conditioning . . . . [J]udicial independence is a matter of the character of the individual judge. . . . [T]he quality of the individual, not necessarily the selection process, determines the independence.@

It is difficult to quarrel with the logic of Chief Justice Abramson= s observation. First, because C as one of the preeminent jurists in the country C she is exhibit A for her argument, and secondly, because I take it to be a given that all of us would prefer a messy selection process that results in Judges of integrity to a tidy selection process that does not.

But, except in the federal system or the rare state with judicial life tenure, it is not only selection but re-election or retention that affects judicial independence.

Although judicial character is fundamental to judicial independence, it would be naive to believe that a judge is not affected by what I have chosen to call the A culture of judicial independence.@

To put it another way: as the father of three young girls, I trust that the character of my children will provide the strength they= ll need to meet the challenges they= ll face, but I know that the culture in which they are being raised will test their character more often than I would like.

George Will has observed that A today parents are parenting against the culture.@ It can also be said that today= s judges are A judging against the culture,@ at least to the extent that today= s A culture of judicial independence@ can be relied upon to reinforce judicial integrity.

Recently, and most notoriously, we have had the unfortunate example of U.S. District Court Judge Harold Baer= s experience. Judge Baer, as you will recall, made a highly controversial ruling in the Southern District of New York suppressing the seizure of 80 pounds of heroin and cocaine in the trial of a drug defendant. Whatever the merits of that decision, it was the reaction of those who should know better that gives one pause. Judge Baer= s decision came in 1996 C an election year. The Senate Majority Leader said that if Judge Baer did not resign he ought to be impeached. The White House issued a statement that if Judge Baer did not reverse his suppression ruling, the President might ask for his resignation.

After granting reargument and hearing additional evidence, Judge Baer reversed his suppression order. I do not know all the factors that Judge Baer considered in reversing his decision, but I would guess the likelihood that the statements of the Senate Majority Leader and the President had no effect are equal to the chance that Bob Dole and Bill Clinton= s interest in Judge Baer in a an election year was coincidental.

A Georgia Congressman, speaking at a 1997 forum on judicial independence, was more candid:

A Not impeachment itself but just discussing impeachment

. . . is representing public pressure . . . . The people write about it, talk about it, and the judges, I think, probably ninety-nine times out of a hundred will get the message.@

The A message@ : now there= s a staple of American political dialogue.

I ought to know. For a dozen years as Attorney General, I sent a number of messages, including, I will admit, a couple to the Judiciary. I have pointed out to my current colleagues that I always used quotations from dissents because they were more acerbic than anything else I dared say as Attorney General.

The time honored political practice of A sending messages@ is, in fact, a perfectly appropriate method of executive and legislative branch officials responding to the popular will. The recipients of the message have, in most cases, the right and the capacity to respond in kind. The political process is intended to enable the public to sort out messengers and messages C and leaving aside for another day the significant issue of the insidious effect of money on politics C it is fair to say, I believe, that the give and take of the democratic process provides a playing field that, if not perfectly level, is at least traversable.

But, I now find myself in the very different position of being C not the one who is supposed to send the message C I= m the one who is supposed to get the message.

I wish to spend a few moments this afternoon discussing A messages@ C for if, as some have accurately noted C I lack judicial experience, I can assure you I have had considerable experience in judging the intentions of those who seek to A send a message.@

It may be helpful at the outset to dispel the simplistic notion that the Judicial Branch never hears or listens to the other branches of government.

It is true that the Vermont Constitution asserts that A the Legislative, Executive, and Judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the others.@ But, as the Vermont Supreme Court observed nearly a century ago, A this section does not require an absolute separation of governmental functions, for that would paralyze government.@

The notion that the Judiciary is a A city onto itself@ whose residents speak only when spoken to and sometimes not even then, would not long be held by someone who has seen me testifying before the Senate and House Appropriations Committees. Nor, would a Judge who has been through confirmation and retention hearings describe the Legislative Branch as reticent. And the Executive Branch C at least under its current leadership C has been known to offer an opinion or two about the Judiciary.

So, my first response to those who contend that A a message needs to be sent to the Judiciary@ because the Judicial Branch is too isolated and aloof, is that they ought to take a good look at the interdependence of the Vermont Executive, Legislative, and Judicial Branches: each relying upon the other for the good faith execution of duties that may be unique to one branch but are necessary to meet the responsibility of the whole.

Some believe that a A message must be sent@ to judges because they are distanced from life and reality. There= s a simple response: spend a day in family court. The irony of the view of critics who think that the Judiciary lacks the public= s confidence because the Judiciary is too insulated is that public confidence may be eroding because the judiciary is too involved.

There are more than two dozen Judicial Branch projects, for example, whose purpose is C directly or indirectly C to find a better way to, in the words of one A to provide an integrated approach to decision making which results in better outcomes for families.@

Someone has said C and as the father of a 13 year old , 9 year old and 6 year old I now understand what he means C that A having a family is like having a bowling alley installed in your brain.@ I will resist further analogies but dealing with families is not quiet work.

The appalling effects of family disintegration on society are obvious. The capacity of the judicial branch to deal with the consequences is uncertain C but I would suggest C greater than our capacity to deal with the causes. In any event, whether judges are dealing with consequences or causes or both, the Judicial Branch makes decisions not friends.

Of Course, the Judiciary cannot C and should not C be insulated from criticism.

Although judges may sometimes wish it were so C the debate about the wisdom of judicial restraint or the necessity of judicial activism is not limited to those trained in the law.

It may be small comfort when one= s decision is being universally condemned, but it is helpful to recall that political critiques of judicial opinions are nothing new. Jefferson, for example, called Marshall= s judicial reasoning A twistification.@ Occasionally, a judge= s reaction to criticism may have more to do with judicial vanity than judicial independence. And judges who characterize the opinions of their colleagues as A irrational@ or A not to be taken seriously,@ as Justice Scalia has been known to do, cannot be heard to complain when similarly intemperate language is used by non-judges.

But, even allowing for these caveats, unprincipled A messages to the Judiciary@ are not hard to find.

As Chief Judge Judith Kaye of the New York Court of Appeals put it, the great advantage for those who use the evening news to take soundbite slaps at judges is that a A judge cannot bite back.@

Cynical judge bashing is all the more insidious because the public has very little knowledge or understanding of the judicial process.

One of the profoundly detrimental consequences of unprincipled attacks on the Judiciary is the erosion of public acceptance of the legitimacy of judicial decisions.

The Washington Post recently reported that more than half the public could name the three stooges but not a single Supreme Court Justice.

I don= t think that finding is particularly disturbing because in my view judges should not be interested in name recognition.

If C as some preliminary survey results I have seen suggest C only 1 in 4 Vermonters can name a Vermont Judge or Justice, that is not cause for alarm. In fact since 15 of us are up for retention in 1999, I rather hope that we sink further into anonymity.

But, if C as the same survey results also show C 2 of every 3 Vermonters believe that judicial decisions are not A independent of politics,@ that is more than a wake-up call for those who are committed to judicial independence C it is a distress signal.

Certainly the future of the Judiciary is only as secure as the faith of the public wills it to be. That is why I believe the Commission on the Future of the Vermont Justice System established this past June by the Vermont Supreme Court as well as the VBA= s Citizen Justice Conference are critical to the shape and support of the Judiciary in the 21^st Century. The close collaboration between the VBA leadership and the Judicial Branch mirrors a national effort to bring together interested citizens C with a special emphasis on non-lawyers C to think anew about the future of our justice system. None of us believes that a Commission and a Conference is an end to itself C but we all believe it can be a fresh start to the never finished business of accounting to the public, ourselves, and to justice.

There must be judicial accountability. But it must begin with an accountability to conscience.

A Be admirable and real@ said Emerson, A not as we know but as you know.@

A judge who must think first of the public response to his or her decision instead of the quality of his or her judging is not an independent judge.

Judicial independence is a value easy to honor in the abstract, but more difficult to applaud when one disagrees with a decision. But, of course, it is then that it most needs to be sustained.

To make an unpopular judicial decision said Hamilton in Federalist Paper #78 requires A an uncommon portion of fortitude.@

And even the bravest sometimes need help.

There is a famous story told in the British Army of the time a Colonel sought volunteers to undertake a mission of extraordinary danger. Needing experienced soldiers to make a nighttime jump into enemy territory, the Colonel addressed a regiment of Indian troops whose bravery was legendary. A I shall not minimize the risk@ said the Colonel A We will provide you with all the support we can but an airdrop into the heart of fortified lines where you shall be severely outnumbered is very, very dangerous indeed. I ask only those who truly volunteer for this mission to sept forward.@

The Colonel= s warning and request was translated into the local dialect by the Regimental Sargent. To the astonishment of the Colonel, who knew he was addressing the most courageous troops on the sub continent, not a single soldier stepped forward.

The Regimental Sargent leaned over to the Colonel and said, A Perhaps sir you should tell them that you will provide parachutes.@

When we seek applicants for the Judiciary, the wonder is that so many qualified lawyers step forward. They do so, I believe, because C to date at least C Vermonters have provided the A parachute,@ if you will, of judicial independence. Not to enable Judges to bail out C but to provide them with the capacity to jump into conflict with at least a fighting chance to confront the challenges on the ground.

When I had the privilege of taking the oath of office as Chief Justice, I quoted Curtis Bok, who in describing his own judicial experience said, A a judge= s cases take hold of him and pull things out of him, and it is his business to be sure he keeps the proper supplies on hand, so far as he can be a master of that.@

Surely a part of those supplies is drawn from the A culture of judicial independence@ a culture that cannot be sustained or adequately defended by judges alone. As one distinguished observer has written C against groundless public charges C A judges have traditionally relied upon lawyers their colleagues for that occasion at least.@

I welcome the efforts of the VBA and the ABA to reinforce the value of judicial independence.

Not because we cannot accept criticism C but because we cannot afford cynicism.

Not because we should not be accountable C but because we must not be political.

I have been asked several times this morning C more out of courtesy than interest I am sure C my reactions to my first 18 months as Chief Justice.

As I have thought about my response it occurs to me that it may serve also to summarize the work ahead for those of us committed to judicial independence.

It is more isolating than I anticipated. It is more challenging than I expected. And it is more important than I realized.

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