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Lecturer scrutinizes judicial independence

Meghan Wons | Monday, October 9, 2006

In the appropriate setting of Notre Dame Law School’s courtroom, 9th Circuit Court of Appeals Judge Diarmuid O’Scannlain spoke to Notre Dame Law School’s Federalist Society and members of the South Bend community Friday about the history, myths and implications of judicial independence.

His talk, entitled “The Federal Judiciary Today,” explained judicial independence – a difficult-to-explain concept, he said, that is necessary to support “our great nation and our great tradition.”

O’Scannlain recalled the founding fathers’ intention to keep the three branches of government – executive, legislative and judiciary – separate as a means of balancing powers.

One of the biggest complaints from judges serving under King George was that they felt their livelihood and salaries were subject to how well they followed his opinions, O’Scannlain said. The founding fathers wanted to safeguard against this non-independent judiciary found in Great Britain.

But the system set up in the Constitution was not impenetrable, said O’Scannlain, who explained that judicial independence has been threatened in the past and is still threatened today.

Justice Samuel Chase, the only Supreme Court justice to date to have been served with articles of impeachment, was charged – and eventually acquitted – of “political bias” in the handling of the trial of John Fries, O’Scannlain said.

“The early impeachment of Justice Chase may have been the first attack on the judiciary, but it certainly wasn’t the last,” he said.

More than 100 years later, President Franklin Delano Roosevelt proposed a bill that would allow him to replace justices over the age of 70 even if they did not want to step down. If passed, this bill would have allowed Roosevelt to “stack the court” and guarantee support for New Deal legislation, O’Scannlain said.

The bill was not passed, but with the “switch in time that saved nine” – the name given to Justice Owen Roberts’ shift from the conservative to the liberal wing of the Supreme Court in a Case decided shortly after Roosevelt’s court stacking bill proposal – many believe feelings of threatened judicial independence may have led to Justice Roberts’ switch.

O’Scannlain said there is still an “enduring political power on judicial independence.”

Two “myths” about judicial independence, O’Scannlain said, is that it “protects judicial activism” and “protects judges from criticism of other opinions.”

Judicial activism is opinion based on politics or personal opinion, O’Scannlain said – not the faithful upholding of laws. He said judicial activism and judicial independence are “wholly incompatible.

“Judges are independent,” he said, “but not independent from the law.”

In regards to the second myth, O’Scannlain said criticism of judges must be protected by the First Amendment.

“It is a prized American ideal to speak one’s mind,” he said.

Judges must not, however, bow to public criticism. In cases where judges do seemingly succumb to criticism, “appellate review should occur,” he said. He stressed that “fidelity to the law should exist in the first instance.”

In his concluding remarks, Judge O’Scannlain quoted another judge: “Leave to the people an independent judiciary and they will prove that man is capable of governing himself.”

A question and answer period followed the lecture, extending the conversation to topics such as judicial stripping, the effect of criticism on judges and what role personal convictions or morality plays in the professional lives of judges.

Expanding on earlier comments he made about criticism directed towards the judiciary, O’Scannlain said, “The courts are not immune from criticism. … It is important because reasonable minds can differ.

“Hopefully criticism can be done in a climate of maturity and in a way that respects the institution.”

Personal convictions should not affect how a judge applies the law, he said.

“There are lots of laws with which I disagree that I have to enforce on a daily basis. … I don’t have the power to strike it down unless it is not within the Constitution,” O’Scannlain said.

If he believes a law is unjust, O’Scannlain said he can bring it to the attention of the legislature. A judge can also recuse him or herself from a case if he or she feels there is a conflict of interest.

In response to a question about judicial activism, O’Scannlain said he viewed the judge as a “neutral applier of the law.”

He said it would be appropriate for judges to provide data to Congress regarding opinion on certain legislation or make suggestions for systemic change only after applying sentencing guidelines as defined by law.

O’Scannlain was appointed to the 9th Circuit Court by President Reagan and confirmed by the Senate in 1986.

Notre Dame law professor Anthony J. Bellia Jr. introduced O’Scannlain Friday.

“He has been a leader in working to ensure the quality of opinions on the 9th Circuit Court of Appeals … and he has been a tremendous friend to the University,” Bellia said.

O’Scannlain received an honorary degree from Notre Dame in 2002.