October 2005

President's Corner:

Rebuilding Faith in an Independent Judiciary — Why We Lost It and How We Can Get It Back

by S. Brooke Taylor, WSBA President

Each WSBA president can select a theme or initiative for his or her year at the helm. You have from your election in June until September of the following year to figure it out, but if your choice will involve significant planning and preparation, you need to get with it as soon as possible.

Communicating with All Members

Having told the Board of Governors in my election interview that, if elected, I would visit every county and specialty bar association that would have me (and I will), I already had something in mind involving better communication with members. Perhaps because of my rural location, this has been a theme of mine throughout my volunteer work with the WSBA. I feel strongly that this is something every president should do, and I finally realized that this is something I will do regardless of any initiative I might launch.

A Revealing Case 

When the Terri Schiavo case hit the national news, it caught my attention for what it revealed. What should have been a very private family tragedy became a daily feature on the television news and front pages around the world. An unassuming jurist who would have never sought this case, or the attention it generated, became the unwitting poster child for the rule of law, separation of powers, checks and balances, and judicial independence. This case from a state trial court in Florida highlighted those transcendent principles like no other in recent memory.

The Schiavo case also revealed an alarming lack of public understanding of those four foundational elements of our democracy. From the highest levels of government to public outrage across the land, the vilification of a state trial judge who was just doing his job, and by all objective accounts had done it very well, was a call to arms for all of us in the legal community.

To say that the branch of government which we proudly serve is poorly understood is an understatement. When the U.S. Congress rushes to pass an eleventh-hour bill to hijack a state trial court proceeding for the legislative branch, and when the governor of that state attempts to intervene on behalf of the executive branch, to call it anything less than a crisis is naïve. These blatant invasions of the exclusive province of the judiciary were done without even a passing nod at the doctrine of separation of powers.

The Schiavo case has passed, and Judge Greer will survive, but the level of misunderstanding which it exposed imperils the future of our democracy. Oliver Wendell Holmes characterized the judiciary as “the crown jewel of our democracy,” yet we who understand that characterization have done a dismal job of explaining it to others. How often have we heard voters question how “some judge” can throw out an initiative passed by the people? A talk-show caller opines that Congress shouldn’t worry about court security issues because the judges can just “order it” like they do everything else. A very articulate physician asked to write an opinion piece for USA Today concludes that he and his colleagues “should not have to just blindly follow the order of some judge.” Key national political figures such as house majority leader Tom Delay, former U.S. Attorney General John Ashcroft, and others, have come up with catch phrases such as “judicial autocracy,” “these out-of-control judges,” and “intrusive judicial oversight.” This demonization of an entire branch of government is unprecedented in the history of our nation, and strikes at the very heart of our democracy.

A representative form of government must earn and maintain the support and confidence of the electorate to survive. In particular, that branch of government which mediates all disputes, which protects basic freedoms, and which stands between citizens and the other branches of government, must, above all, be credible and reliable. The more citizens know and understand about what lawyers and judges really do, the way the judicial system functions, and its critical role in preserving and protecting our democracy, the more attention will be paid to funding our courts, to providing security for our judges, and ultimately, to both the selection and protection of our judiciary.

Teaching the Electorate

These four fundamental principles — the rule of law, separation of powers, checks and balances, and judicial independence — are the four corners of freedom and stability. Within these four corners lies an incredible tapestry woven together by independent judges and committed lawyers which is the envy of the rest of the world. These fundamental principles are not complicated. This is basic stuff. This is Government 101, and who better to teach it than the members of our profession — those of us who live and breath it (and sometimes lose sight of it)? DeToqueville concluded that the success of the American “experiment” with democracy depended on an educated electorate. Who better to teach the electorate about the critical role of the judiciary than lawyers and judges? We must start viewing every day as a teaching opportunity.

Back to Basics

This is not about burnishing the image of lawyers in our society. This is about standing up for what we believe in a time of crisis. This is about protecting that which protects all of us. This is about telling our story. If, in the process, the credibility of our profession is elevated in any way, that will be a welcome, but unintended, consequence. It’s time to get “back to basics,” and I ask my colleagues in the Washington State Bar Association, both lawyers and judges, to join me in this effort.

Clearly, this must be a long-term endeavor, institutionalized as a WSBA program. This ground wasn’t lost in a day, and it won’t be regained in a day. But our immediate goal for this year is to get started — not just with thinking, planning, and structuring, but with sharing what we know at every opportunity. We can all help immediately in this effort by looking for teaching opportunities in our daily lives — with clients in our office, with friends in our church or service club, with our children at the dinner table, with citizens in our public courtrooms — these are all educational opportunities. Use the Schiavo case as a springboard to explain these core principles. Shine the light on examples of abuse, and highlight when the system works. We can do this. More to follow. 

Brooke Taylor may be reached at 360-457-3327 or sbtaylor@plattirwintaylor.com. If you would like to write a letter to the editor on this topic, please e-mail it to letterstotheeditor@wsba.org or mail it to WSBA Bar News, Attn: Letters to the Editor, 2101 Fourth Ave., Ste. 400, Seattle, WA 98121-2330.