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
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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