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Judicial Independence

Attorneys Appearing in Court

Today’s post is speculative in nature, more musings than advice. Over the last few presidencies, we have seen an unprecedented expansion of the power of the executive branch. There are some who say this overreach began with Bush, others who say it began with Obama, and there are probably those who would argue it began with Clinton or before. What is true beyond a doubt, however, is that Presidents have been using powers like “signing statements” more than ever before. This brings us to an important element of the law; judicial independence.

If you’re reading this, it’s incredibly likely you already appreciate the value of an independent judiciary. Here’s something you might not realize, though; many Americans believe that judges elected in their state should reflect the views and wants of the people who elected them. This is the inevitable result of any electoral system; a population will only vote for an individual who they think will represent their views. It could very well be that their views are “judges should remain impartial and interpret laws accurately to the best of their ability”, but it’s more likely that their views are “repeal Roe v. Wade” or “repeal Citizens United” or some other politically motivated, partisan idea. The result of this may very well be that the judiciary remains independent of the other two branches of government, but not independent from the people who elect judges.

This means it’s your duty as an attorney to inform people of the importance of an independent, non-partisan judiciary. The concept of “independence” goes beyond just the popular vote, though. None of us are truly independent of all influences; we are all marked by preconceptions, we all have individuals we prefer over others, we all have different cultural norms, we all have biases. These biases can be difficult to mete out when you’ve never worked with a person before, and difficulty understanding the cultural conceptions of a particular courthouse can make proceedings there more difficult. There are qualified court appearance attorneys available for every courthouse in the country; these attorneys know the court staff and judges, so they’ll be able to more deftly navigate the proceedings, to the advantage of you and your clients.

While a healthy dose of independence is key for the judiciary, total independence from public opinion is impossible - and that’s a good thing. While it may be disheartening to hear people talk about how they don’t trust the legal system, it is a good metric for how well we’re doing; the more people who seem dissatisfied or who have lost confidence, the more likely it is we need to change our perceptions, our ways of doing things, our methods and procedures and best practices. Everyone gets tired of hearing the variations of “lawyers are bad” from people who don’t understand the first thing about the law, but being accountable to public opinion is part of what enables us to be so independent, so while you might wince, at least you know you live in a country where free speech is protected - largely by us.