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interview: justices stephen breyer and anthony kennedy


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Breyer and Kennedy are Justices of the U.S.Supreme Court. The interviewer is Bill Moyers.
Last year in Philadelphia, at the American Bar Association, both of you were quite outspoken on this issue of judicial independence and the threat of financial contributions and political pressure. Why did you sound the alarm?

Kennedy: We have a special point of view to present. The judiciary as an institution is faced with a new threat. Democracy is something that you must learn each generation. It has to be taught. And we must have a national civics lesson about judicial independence.

Breyer: It's important to every American that the law protect his or her basic liberty. We developed a system of protecting human liberty such that judges and independent judges are a necessary part of that protection. I think it's important that Americans understand that. And if that independence is seriously eroded, it will be hard to protect those things that this country was based upon.

You said in Philadelphia, Justice Kennedy, that the law makes a promise. The promise is neutrality. What do you mean by neutrality?

Kennedy: You have to remember that we live in a constitutional democracy, not a democracy where the voice of the people each week, each year, has complete effect. We have certain constitutional principles that extend over time. Judges must be neutral in order to protect those principles. . . There's a rule of law, [and it] three parts. One: the government is bound by the law. Two: all people are treated equally. And three: there are certain enduring human rights that must be protected. There must be both the perception and the reality that in defending these values, the judge is not affected by improper influences or improper restraints. That's neutrality.

And yet, as you said in Philadelphia, judges don't emerge in a vacuum. You all are products in a way of the political process--not individually, but it's the process that gets you to where you are, even if appointed. Is neutrality really possible?

Breyer: I think, Yes, it is. Judges are appointed often through the political process. At least there's a political input, but when you put on the robe, at that point the politics is over. And, at that point, a judge must think through each case with the total neutrality that you mentioned. . . All anyone has to ask himself is, Suppose I were on trial? Suppose somebody accused me. Would I want to be judged by whether or not I was popular? Wouldn't I want to be judged on what was true as opposed to what might be popular? Think of Socrates: 500 Athenians voted to condemn him. We have a different system. And our system is based upon what you described as neutrality and independence.

If an attorney gives money to a judge with the expectation that the judge will rule in his interest or his client's interest, that is corrosive of our institutions.  That is corrosive of judicial independence. Kennedy: Our system presumes that there are certain principles that are more important than the temper of the times. And you must have a judge who is detached, who is independent, who is fair, who is committed only to those principles, and not public pressures of other sort. That's the meaning of neutrality.

Breyer: I'll give you an example if you want because I often get the question, "Well didn't you go through a confirmation process?" And in that confirmation process, I sat for 17 hours in front of a senate judiciary committee. I mean maybe 17 hours and 30 minutes, who's counting? But they asked me questions and I had to answer. And it was on television. . . If they were listening and they decided they didn't like what they saw they might communicate with their elected representatives. And perhaps I wouldn't have been confirmed. Well what did I think about that? I thought that that was an effort to inject a popular element, a democratic element into the selection of a person who, once he is selected and confirmed, is beyond electoral control. Now why do we have such a system? Because, on the one hand, people, when they think about it, want judges to be independent. Nobody wants a judge to be subject to the political whim of the moment. At the same time, we do live in a democracy. And for that reason I think it is appropriate to have some element of public control. And that element of public control in the federal system is introduced through the confirmation process and the selection process. But once the person is selected, at that point that person is independent.

Do you think that people who make contributions to judicial elections want those judges to be independent?

Breyer: I don't know. I imagine some may, some may not. I don't know. It's a question of degree. You can have many different selection systems, but the bottom line has to be a system that, once the judge takes office that judge will feel that he or she is to decide the case without reference to the popular thing or the popular will of the moment.

Go back to the confirmation example, for a moment. Do you think the senators wanted you to be independent?

Kennedy: Were they asking questions of Justice Breyer and of me and of our colleagues in order to determine how they would vote on a particular issue? Or were they asking instead to probe the temperament, the judicial qualities, the scholarship of the nominee? I hope it's the latter.

Judicial 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. Breyer: It is the latter, it is the latter. . . They're selecting the person because they think that person will be all right, and they believe and want, once that person is selected, that [the judge] should be independent. I mean, years ago, we heard Russian judges--I did once at a conference--and they were talking about what's called "telephone justice." And telephone justice is where the party boss calls you up on the telephone and tells you how to decide the case. So they said, Well, don't you have that in the United States? Now, really don't you? So I said, No. And I looked around and I said, Well I know you're thinking that even if we did, I would say no. They said, That's right. And I said, Well how can I explain it? It's just that no one in the United States wants that kind of system and it would be outrageous and beyond belief that someone would call up on the phone.

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.

Let me just give you some statistics from a poll conducted by the Texas state supreme court and the Texas state bar association, which found that 83% of the public think judges are already unduly influenced by campaign contributions. 79% of the lawyers who appear before the judges think campaign contributions significantly influence courtroom decisions. And almost half of the justices on the court think the same thing. Isn't the verdict in from the people that they cannot trust the judicial system there any more?

Kennedy: This is serious, because the law commands allegiance only if it commands respect. It commands respect only if the public thinks the judges are neutral. And when you have figures like that, the judicial system is in real trouble. And that's why we should have a national conversation about it.

Breyer: I agree completely. 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.

Our research shows that the contributions to judicial elections around the country are increasing at a faster percentage than contributions to presidential and congressional races. What do you make of that?

Breyer: I think it's a very good idea to try to look into it empirically. As you know the federal judges are not elected. We are selected, but I grew up in California and in San Francisco and there was a system of electing judges. But it was pretty unusual to find an instance where the position was contested let alone find an instance where there was a lot of campaign money.

There was a pre-selection process.

Breyer: Well, just that there would be somebody in the office and the voters-- it was more or less an understanding in the entire community, as long as that person was doing a good job on the merits, nobody was going to run against him. And the problem is once you get into this campaign business and begin to have a lot of money, then the person on the bench begins to think--what's going to happen if I decide the case this way or that way? Or at least the public sees it that way.

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.

We actually talked to a lobbyist in Texas on record, on camera, willing to go on camera to talk about how--it's a lobbyist for the Texas Medical Association who boasted that he had succeeded in reshaping the philosophy of the Texas supreme court through an all-out political campaign and very large donations. They took [control of the court] from the trial lawyers who had been making contributions and had influenced the court to the other side of the, of the aisle. What does that say about the perception of independence?

Breyer: I think it shows that if you have one group of people doing it, you'll get another group of people doing it. And if you have A contributing to infect, to affect a court one way, you'll have B trying the other way. And you'll have C yet a third way and pretty soon you'll have a clash of political interests. Now, that's fine for a legislature. I mean that's one kind of a problem. But if you have that in the court system, you will then destroy confidence that the judges are deciding things on the merits. . . And as I said our liberties are connected with that.

Kennedy: But when you carry over the political dynamic to the election, fair takes on a different meaning. In the political context fair means somebody that will vote for the unions or for the business. It can't mean that in the judicial context or we're in real trouble. . . To begin with, we have to ask, Is it fair for the electorate to try to shape the philosophy at all, without campaign contributions? Is this a proper function? I am concerned about that. I do not think that we should select judges based on a particular philosophy as opposed to temperament, commitment to judicial neutrality and commitment to other more constant values as to which there is general consensus. . .

I was struck by something you said in Philadelphia, last year. You said that it's wrong for attorneys to make contributions to judicial candidates and expect favorable rulings in return. But would a lawyer make a contribution to a judicial campaign without expecting something? That's not human nature to give without expecting something back.

Kennedy: But the law is a profession and lawyers are committed to uphold the constitutional system and the independence of the judiciary. And I adhere to my statement. If an attorney gives money to a judge with the expectation that the judge will rule in his interest or his client's interest, that is corrosive of our institutions. It's corrosive of judicial independence.

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.

Kennedy: I'm not sure. . .

Even at the local level some judicial candidates have to raise $250,000 to win and spend a great deal of time not only raising money but making television commercials, being coached by media advisors to walk into the room and look judicial. Now what does this do to the process?

Breyer: It demeans the process. We all know there are other countries where, for various reasons, the public lacks confidence in the judiciary. . . And where those things have happened, I think there have been bad results for the people who live in the country, not just for the judges, not just for the lawyers, but for the ordinary man and woman who lives in the country. There tends not to be a method of fairly resolving disputes. And that means that it's harder to develop businesses. It's harder to just live an ordinary life in a fair way and it's harder to protect liberty.

Have you given any thought to what we could do about this?

Kennedy: First, 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. . . If we could somehow use elections to educate the public on the meaning of judicial independence, then we could take what is a flaw and turn into a strength, what is a disadvantage and then turn it into advantage.

Breyer: Ultimately, 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. . .

I respect your respect for the public, but I have to say that in states like Louisiana and Texas, where we've been reporting, the public stake in, and awareness of, and involvement in, judicial campaigns is being submerged to the sheer flood of contributions that are coming in. So that the public is less and less aware of what's happening behind the scenes.

Breyer: Judges can't easily defend themselves. We can speak about the institution, but ultimately the bar is the group that both is in touch with the public on the one hand and understands the judicial institution on the other. And I had hoped that the bar associations would take the lead and try and think about the problem and educate the public. . .

Kennedy: Most of the contributions that you're talking about are by entities that are interested in the civil law, the economic interests. . . [But] the criminal judge has no basic constituency to support him or her if they are obeying the law and are doing the job in the right way. And so when there's a contested election it then becomes, Who's tougher on crime? And this is very unfortunate because it distorts the idea of judicial independence. A judge sometimes must release a criminal. He doesn't like it, she doesn't like it, but the law requires it. And the context of an election in which you are "soft on crime" betrays a misunderstanding of the judicial process and a misunderstanding of the constitution.

Breyer: And supposing the person didn't do it? It doesn't help to fight crime to put people in prison who are innocent. And if a judge is going to be criticized for letting off a person and it turns out that person was innocent, that would be a pretty bad criticism. Or suppose the person didn't have a lawyer. Well it's fairly important that everyone have a lawyer and so we have a system that you can't convict a person without a lawyer, even if he's guilty. Well the judge might stand up for that principal, which he has to do under the law. And it would be a pity if because he stood up for the correct constitutional principle or decided that a person was innocent, wouldn't' be convicted, that some opponent, through a set of advertisements took his job away. That's the problem.

Do you think we're losing qualified people because of this system?

Kennedy: I have no recent studies or empirical basis on which to answer that question. . . We so far, I think, are very lucky. There are some real heroes in the state judicial system, some marvelous judges, who know the law, who love the law, who are serving there for the right reason.

Breyer: I completely agree with Justice Kennedy, and particularly the last comment, because often I used to tell students who come to the court--You'll read in the newspaper about the Supreme Court of the United States. You will read in the newspaper more often about federal courts, but the law that affects people, the trials that affect human beings are by and large in the state courts. That's the bread and butter of the judicial system. Those are the judges who decide where the child should go in the case of divorce. Those are the judges that deal with 90% of the crime. Those are the judges that deal with a person's house, with a person's car, with everything that means something to an individual family. And they don't get lots of publicity and they don't get a lot of salary either. And life in some of those courts is not so easy for the judges. And the walls may have a few cracks and the telephone may not work, and they may have a hard time getting their case recorded because the word processor--well, they don't have one. . .

Do you think that this is a critical moment for examining judicial elections?

Kennedy: A commitment to the constitution is not something that's genetic, it's not inherited, it's not automatic. It has to be taught. And 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. . . There must be a rededication to the constitution in every generation. And every generation faces a different challenge. We weren't talking about this 30 years ago, because we didn't have money in elections. Money in elections presents us with a tremendous challenge, a tremendous problem and we are remiss if we don't at once address it and correct it. . .

Well you remind me of what the historian Plutarch said in the Roman Republic: "The abuse of buying and selling votes crept in and money began to play an important part in determining elections. Later on, this process of corruption spread to the law courts. And then to the army, and finally the Republic was subjected to the rule of emperors."

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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