justice for sale

the justices

interview: justices stephen breyer and anthony kennedy
excerpt


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The concern that each of you expressed last year in Philadelphia was in particular about campaign contributions to judicial races. Why do you see that as a threat to independence and neutrality?

Kennedy: Well, in part, it's because the campaign process itself does not easily adapt to judicial selection. Democracy is raucous, hurly-burly, rough-and-tumble. This is a difficult world for a jurist, a scholarly, detached neutral person to operate within. So, the whole problem of judicial campaigns is difficult for us to confront. Now, when you add the component of this mad scramble to raise money and to spend money, it becomes even worse for the obvious reason that we're concerned that there will be either the perception or the reality that judicial independence is undermined.

. . .

Breyer: Independence doesn't mean you decide the way you want. Independence means you decide according to the law and the facts. The law and the facts do not include deciding according to campaign contributions. And if that's what people think, I couldn't agree with you more. The balance has tipped too far, and when the balance has tipped too far, that threatens the institution. To threaten the institution is to threaten fair administration of justice and protection of liberty.

. . .

Kennedy: Decades ago there was an old boy network. And like most old boy networks it worked rather well. . . The bar defended its judges. The bar was unified. It was run by the old boy network. Things have changed. They should have changed. We shouldn't have an old boy network. The problem is the bar itself has become fractionated. You have plaintiffs attorneys, you have defense attorneys. So there is no unified bar that will protect a particular judge who has made a courageous decision that's unpopular.

. . .

Breyer: Once you're in a system where there are contributions being made, it's certainly not the case that everybody expects something back. I mean those people who are interested in good government will certainly contribute in order to make certain there's some counter-balance to those whose interests in good government is less.

Kennedy: You're hypothesizing the neutral eleemosynary donor. I hope they exist.

Breyer: I think they do. I'm an optimist.

Kennedy: I'm not so sure. . .

. . .

Kennedy: I hope that there will be enough of a concern by all segments of our community about protecting the independence of the courts that people will seriously consider trying to improve the election climate. That's the first thing. Second, I think the bar association ought to return to its earlier neutral professional attitude. Third I think other civic groups and the media ought to do the same thing. . .

Breyer: The question of campaign contributions will be decided by the public. We do it in a democracy. Every citizen has to figure out what kind of government he or she wants. The most that we can say is that there is a problem and we hope you'll think about it. . . And we trust that if people do think about it, they'll come to better solutions. . .

. . .

Kennedy: Each generation must learn about the constitution and the values of constitutional institutions within the context of their own time, within the environment of their own time. And if we are in an era in which there is a loss of confidence in the judicial system--and, even worse, a misunderstanding of the judicial system--then we must take steps to correct it. I do sense that there is a growing misunderstanding, a growing lack of comprehension, of the necessity of independent judges. . .

Breyer: There are loads of countries that have nice written constitutions like ours. But there aren't loads of countries where they're followed. And the reason that they're followed here is not simply because of the judges. It's because of the Civil War. It's because after 80 years of segregation you had a decision of Brown v Board that said people will be treated equally. And then many years before that became real, and gradually over time, 270 million people have learned roughly the importance of following that constitution and following that law. It's complicated. It's called habit. It's called respect for the constitution, and it's called respect for the institution of the judiciary. And that grows slowly. People have to be educated and they have to stick to it. If people lose that respect, an awful lot is lost.

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