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VOL. 10 | NO. 17 | Saturday, April 22, 2017

'Fragile Fortress'

Judges, attorneys discuss judicial independence

By Bill Dries

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When former U.S. Attorney General Michael Mukasey spoke at the University of Memphis Cecil C. Humphreys School of Law in April on the concept of judicial independence and the reality of judicial criticism, he came with some criticism of his own of the judiciary.

Former U.S. Attorney General and federal court judge Michael B. Mukasey, who spoke at the 2017 University of Memphis Law Review Symposium, says judges increasingly are perceived as political players.

(Memphis News/Andrew J. Breig)

“We are not, as you know, in ordinary times,” Mukasey told those attending the U of M Law Review Symposium, which this year was titled “The Fragile Fortress.”

It was a reference to President Donald Trump’s first four months in office. In that time, Trump has issued two immigration travel bans, both of which have been halted, at least temporarily, by court orders.

Those orders prompted Mukasey to say the danger to judicial independence “comes from inside the fortress.”

“I think what we’ve seen increasingly is that judges are perceived to be, and in some cases may very well be, political players,” he said. “It can often matter very much who the judge is.”

In a separate appearance at the forum, Memphian and federal Judge Bernice Donald, who sits on the Sixth Circuit Court of Appeals, made a qualified case for the value of dissents in appellate court decisions.

Decisions in federal appeals courts and state appellate courts below the Tennessee Supreme Court usually are made by three-judge panels. Sometimes those decisions come with dissenting opinions from judges who don’t agree with the majority ruling; other times, a judge may issue a separate opinion that concurs with the majority but disagrees with a specific point.

“Today we have all come to know that courts really don’t act as monoliths,” Donald said by a remote broadcast while her flight from New York was delayed. She was referring to a quote from federal appeals court judge Learned Hand: “Disunity cancels the impact of monolithic solidarity.”

Donald said dissents have value as “clarion calls,” as in the dissent from the Dred Scott Supreme Court decision that ruled slaves were property with no rights.

“Courts need to decide cases, and in deciding cases, it should be decided in a way that makes the law clear,” she said. “I accept that most judges don’t like to dissent. Judges, I think, would rather discuss the case and come to a unanimous decision. But that’s not always the case.”

Meanwhile, Justin Walker, a professor at the University of Louisville Brandeis School of Law, spoke at the symposium against the idea of judges making their working papers public once they retire.

Walker added that he would like to be able to see how historic landmark rulings are made and the evolution of those rulings, including compromises in the drafting of languages among groups of appellate court judges. But he also pointed to confirmation controversies in the U.S. Supreme Court appointments of William Rehnquist and Elena Kagan over drafts and arguments they wrote as clerks.

“I don’t want a clerk for a judge to have to be worried about what some future person will think,” he said. “What I want clerks to be thinking about when they clerk for judges is, ‘What is my best advice? How can I best serve the judge whom I clerk for?’”

Walker added, “There is sometimes value in secrecy,” speaking of the work of the Constitutional Convention as well as panels of judges. “When you require people who are trying to compromise and come together to make public every step along the way, it’s a recipe for not reaching consensus.”

Mukasey, meanwhile, argued that public statements Donald Trump made during the 2016 campaign have found their way into federal appeals court rulings on Trump’s immigration travel ban orders.

He sees it as an indication that some judges have decided Trump is “permanently tainted.”

“What the judges deciding those case have done is to say essentially that so long as the order emanates from Donald Trump it cannot be given a normal presumption of regularity that would attach to the order of another president or indeed another executive officer who has taken an oath to uphold the Constitution,” he said.

Mukasey, a former federal judge in New York, drew a definition of an “independent judiciary” that “is independent not only of the slings and arrows of politicians … but independent also of the temptations to popular adulation.”

And he suggested the remedy might be in the third branch of government.

“Congress has the power to define and of course to limit the jurisdiction of federal courts, and Congress can use that power any time it wants to, to restrain the courts or at least to limit them to a proper exercise of their subject matter jurisdiction.”

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