Where to Draw the Line: ABA commission defines areas of judicial independenceAuthor(s): HENRY J. RESKESource: ABA Journal, Vol. 82, No. 12 (DECEMBER 1996), pp. 99-101Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/27839354 .

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Where to Draw the Line ABA commission defines areas of judicial independence BY HENRY J. RESKE

Judicial independence, one of the more complex issues in Ameri can political life, has bedeviled politicians, jurists and scholars since the birth of the nation. Now the American Bar Association is trying to help find the equilibri um in the often tenuous balance between the third branch of government and its executive and legislative counterparts.

Testimony in October at the first hearing of the ABA Commission on the Separation of Powers and Judicial Indepen dence, created this summer after political sniping at judges over single or isolated opinions or rulings threatened to ex

plode into trench warfare, illus trated the unending dilemma.

Louis H. Pollak, senior judge of the Eastern District of Pennsylvania, and Professor Stephen Burbank of the Uni versity of Pennsylvania Law School told the commission that political threats to the Ameri can judiciary began practically with its creation.

Burbank recounted that pro ceedings brought against Justice Samuel Chase of the U.S. Supreme Court in the early 19th century failed, but were "apparently the first salvo in a planned campaign by Jeffersonians to 'reform' the federal judiciary." He also noted, "Most of us are, I expect, old enough to re member the billboards urging the impeachment of Chief Justice Earl

Warren."

Targeting Judges This year, U.S. District Court

Judge Harold Baer Jr. of the South ern District of New York became a target after ruling to suppress evi dence in a drug case. Republican presidential nominee Bob Dole bluntly criticized the ruling and President Clinton challenged it through a spokesman. Baer later reversed himself.

Also during the primary cam paign and in his acceptance speech, Dole signaled that he would further criticize the federal judiciary. In April he dedicated what he called

"Bill Clinton's judicial hall of shame": a handful of judges who had issued or joined specific opin ions with which Dole disagreed.

At the state level, politicians and special-interest citizens groups also took aim at judges for individ

ual decisions they did not like. In Tennessee, supreme court Justice Penny J. White lost a scheduled re tention vote over a single opinion in which she and other justices or dered a new death-sentence hearing for a murderer. In Nebraska, oppo nents recast a regular retention vote last month on supreme court Justice David Lanphier as a refer endum on his vote against term lim its for some elected officials.

Recent arguments have become increasingly partisan and personal. In a statement to the ABA commis sion, ABA President N. Lee Cooper noted, "Politicians from the execu tive and legislative branches have sought to exert increased control over the judiciary in budgetary and personnel matters, have sought to constrict judicial authority in mat ters such as sentencing and have? on occasion?lashed out [at] the individual opinions of particular judges to score political points."

Thomas L. Jipping, director of the Center for Law and Democracy with the conservative Free Con gress Foundation, however, argued that much of what are considered

threats to judicial independence, such as criticism of judicial actions, are "not threats at all." Jipping said that if judges were not deciding po litical issues and showed more re straint there would be fewer and smaller battles.

Others were less sanguine about the problem. Ohio Supreme Court Chief Justice Tom Moyer said the biggest threat to judges at the state level is the legislative branch's control of the judicial bud get, allowing politicians to control judges' salaries and staff sizes.

The commission, formed by Cooper after the ABA Annual Meet ing in August, has 10 members and a chair, including former judges, former prosecutors and current and former elected officials. Its mission, through at least three scheduled hearings, is to define zones for judi cial and political operations, and where intrusions are appropriate.

The zones it is trying to mark off around judges are: a "constitu tional zone" of independence that political branches must not invade; a "normative zone" based on consti tutional principles that political branches should not invade, even if not barred by the Constitution; and a zone that political branches may and sometimes should invade to pur sue important legislative objectives.

The next hearing is scheduled for Dec. 13 in Washington, D.C.

Political power plays were on the agenda at the October hearing in Washington, D.C.

ABAj/ROB CRANDALL ABA JOURNAL / DECEMBER 1996 99

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Amendments to the Constitution and Bylaws

The constitution and bylaws of the American Bar Association may be amended only at the ABA Annual Meeting upon the action of the House of Delegates. The next Annual Meeting will be July 31-Aug. 6, 1997 in San Francisco.

Proposals to amend either the constitu tion or bylaws may be submitted by any

ABA member. It is preferable that proposals be submitted in the form of a memorandum that details the purpose and effect of the proposal.

Exact language will be drafted by the Standing Committee on Constitution and By laws and submitted to the sponsors for ap proval. This procedure will ensure that all amendments that are approved conform to the style used in the constitution and bylaws.

In order to be considered at the 1997 An nual Meeting, a proposed amendment must be received by the Division for Policy Admin istration at the American Bar Center on or before March 14, 1997. This deadline is es sential to allow time for proposed amend ments to be considered by the Standing Com mittee on Constitution and Bylaws.

Proposed amendments must then be published in the July issue of the ABA Jour nal, for which the printing deadline is May 1, 1997. Provisions of Articles 12 and 13 of the constitution require that notice of proposed amendments must be given to all ABA mem bers at least 30 days in advance of the meet ing at which the amendments are to be con sidered.

Copies of Article 12, concerning amend ment of the bylaws, and article 13, concern

ing amendment of the constitution, will be provided to any member on request to the Di vision for Policy Administration at the Amer ican Bar Center, 750 N. Lake Shore Drive, Chicago, IL 60611.

Donna C. Willard-Jones

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Meeting Dates 1997? Midyear meeting: Jan. 29

Feb. 4, San Antonio, Texas; annual meeting: July 31-Aug. 6, San Francisco.

1998? Midyear meeting: Jan. 28 Feb. 3, Nashville, Tenn.; annual meeting: July 30-Aug. 5, Toronto.

1999? Midyear meeting: Feb. 3 9, Los Angeles; annual meeting: Aug. 5 11, Atlanta.

2000? Midyear meeting: Feb. 9 15, Dallas; annual meeting: July 6-12, New York City, and July 15-20, London.

2001? Midyear meeting: Feb. 14-20, San Diego; annual meeting: Aug. 2-8, Chicago.

2002? Midyear meeting: Feb. 6 12, Philadelphia; annual meeting: Aug. 8 14, San Francisco.

Notice by the Board of Elections

The following" jurisdictions will elect a State Delegate for a three-year term begin ning at the adjournment of the 1997 Annual Meeting:

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PETITIONS Nominating petitions for State Dele

gates to be elected in 1997 must be filed with the Board of Elections at Association head quarters not later than Friday, Dec. 6, 1996. All nominating petitions must be published in the February 1997 issue of the ABA Jour nal.

A minimum of twenty-Five signatures of members of the Association is required; the nominee and all signers must be members of the Association whose membership is accred ited to the state where the election is being held. There is no limit to the number of can didates who may be nominated in any state, and the nominations are made only on the initiative of members themselves.

Nominating petitions may be obtained from the Board of Elections at the headquar ters office of the American Bar Association, 750 N. Lake Shore Drive, Chicago, IL 60611, and must be filed before the close of business at 5 p.m., Friday, Dec. 6, 1996.

Ballots will be mailed to members in good standing, accredited to the state in which elections are to be held, no later than Friday, Jan. 17, 1997, so they will be received by members at approximately the same time as the February issue of the ABA Journal containing the nominating petitions of the various candidates.

In accordance with ? 6.3(e) of the consti tution, no ballots will be mailed to members when a State Delegate election is uncontest ed. If only one valid nominating petition is filed, the Board of Elections will certify that the sole nominee is elected.

BOARD OF ELECTIONS Joseph F. Baca, Chair Martha Jones Mason

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North Carolina Vacancy Election

The ABA Board of Elections was polled by telephone and certified Larry McDevitt of Asheville as the North Carolina State Dele gate to the ABA House of Delegates to fill a

vacancy expiring at the conclusion of the As sociation's 1998 Annual Meeting.

BOARD OF ELECTIONS Joseph F. Baca, Chair Martha Jones Mason

Steven J. Parsons

100 ABA JOURNAL / DECEMBER 1 996

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Nominating Committee will meet in conjunc tion with the 1997 Midyear Meeting in San

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Sunday, Feb. 2, to vote on nominations for of ficers and members of the Board of Governors of the Association for terms beginning at the close of the 1997 Annual Meeting.

The Nominating Committee will meet at 9 a.m., Sunday, Feb. 2, to hear from candi dates seeking nomination at the 1998

Midyear Meeting. This meeting is open to As sociation members. If you have any questions regarding the foregoing, please contact Rochelle E. Evans in my Chicago office.

Donna C. Willard-Jones

Secretary

Notice by the Secretary At the 1997 Midyear Meeting, the Nom

inating Committee will announce nomina tions for district and at-large positions on the American Bar Association Board of Gov ernors for terms commencing at the conclu sion of the 1997 Annual Meeting and expir ing at the conclusion of the 2000 Annual

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nating Committee, a person must file a peti- ! tion signed by 25 Association members.

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Secretary at Association headquarters not later than Friday, Jan. 3, 1997. Nominees | for district representative must be accredit ed to the state for which the nomination is

being made, and the petition must be signed ? by 25 Association members from the states j within that district. While it is desirable that more than the required minimum of 25 names of members of the Association ap- j pear on the nominating petitions, only 25 | names of signers of any petition will be in cluded with the materials provided to the

Nominating Committee. Only signatures of |

members of the Association will be counted. ! Each nominating petition must be accompa nied by a typewritten list of names and addresses of the signers in the order in ? which they appear on the petition. !

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by a 100-word biographical sketch of the nominee. Forms for this purpose will be pro- j vided. The biographical sketch and a list of ? 25 signers from the nominating petitions will be sent to the members of the Nominat

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Nominating petitions may be obtained from the Secretary at the headquarters of fice of the American Bar Association, 750 N.

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Donna C. Willard-Jones | Secretary

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