Georgetown Law Dean Alex Aleinikoff, far left, and Georgetown University President John J. DeGioia, far right, stand with Supreme Court justices Clarence Thomas and David Souter, former Justice Sandra Day O'Connor, and Justice Stephen Breyer.

On September 28, Georgetown University Law Center welcomed retired Justice Sandra Day O'Connor, six sitting Supreme Court justices, and hundreds of other nationally recognized leaders in law, government, business, journalism, academia and the nonprofit sector when it hosted and co-sponsored a unique two-day conference that addressed the independence of the nation's courts.

O'Connor and Justice Stephen Breyer chaired the conference, "Fair and Independent Courts: A Conference on the State of the Judiciary." Georgetown Law and the American Law Institute served as its co-sponsors. Organizers convened the conference to promote discussion about the preservation of federal and state courts' tradition of independence — seen in partisan confirmation battles, calls for impeachment or recall following unpopular decisions, and public opinion polls revealing resentment of "judicial activism" — and to develop specific recommendations to strengthen judicial autonomy and increase public confidence in the judiciary.

Former Supreme Court Justice and Conference co-chair Sandra Day O'Connor describes increasing anger directed at the courts during her opening remarks.

"Directing anger toward judges has had a long tradition in our nation, I'm sorry to say," O'Connor said during remarks at the start of the conference on Thursday. "While scorn for some judges is not altogether new, I do think that the breadth of the unhappiness being currently expressed, not only by public officials but in public opinion polls in the nation, shows that there is a level of unhappiness today that perhaps is greater than in the past and is certainly cause for great concern."

Supreme Court Justice Stephen Breyer, a conference co-chair, discusses the importance of maintaining an independent judiciary during remarks at the conference's Thursday luncheon.

During a conference luncheon held in Georgetown Law's new Eric E. Hotung International Law Center building, Breyer emphasized the historic roots of judicial independence by quoting from Alexander Hamilton. "We all know, as he knew, that the majority can oppress the minority," he said. "And we all know that there are lots of minorities; we all can be minorities in one respect or another. And so he thought that the judges are the way to make sure that those constitutional protections for the minority against oppression mean something. And anyone who remembers Brown v. Board of Education knows that that made a difference."

The conference, the first of its kind to include prominent figures from outside the legal community, featured more than 250 participants representing a "who's who" among legal, business, media, nonprofit and government leaders. Notably, it featured a Supreme Court "majority": in addition to Breyer, current Justices Samuel Alito, Ruth Bader Ginsburg, David Souter, and Clarence Thomas all attended conference programs, and Chief Justice John Roberts delivered an address to participants at a Thursday evening dinner.

Judicial independence, Roberts said, "is not immunity from criticism."

"Informed criticism is certainly welcome," he said. "But it should not degenerate into attack on individual judges for [a] decision as a means of intimidation, and it should not take the form of institutional retribution — action against the judiciary as a whole — that might inhibit the judges from performing their vital function."

Roberts also noted that "with independence comes certain responsibilities.... We must show that we're capable of managing our own house." He described steps the federal judiciary has taken to address concerns about judges deciding cases in which they have financial conflicts of interest, attending seminars paid for by private parties, and being involved in misconduct that is not subject to thorough investigation.

The Conference drew non-lawyer participants including Berkshire Hathaway Chairman and Chief Executive Officer Warren Buffet, Washington Post Co. Chairman and CEO Don Graham, and RAND Corp. President and CEO James Thomson.

Additional legal luminaries appearing at or attending the conference included Attorney General Alberto Gonzales, former Solicitor Generals Theodore Olson and Walter Dellinger, current Solicitor General Paul Clement, NAACP Legal Defense and Education Fund Director-Counsel and President Theodore Shaw, and numerous federal judges and state supreme court justices. During his remarks Friday morning, Gonzales emphasized that while some criticism of judges is inappropriate — such as when used to rationalize violence — "most criticism should not be of serious concern" because of constitutional protections afforded federal judges.

"As a consequence of the independence that the constitutional framers provided, federal judges are relatively unaccountable for their decisions," he said. "This is why it is so important that judges understand their role in our constitutional democracy and hold themselves accountable to it. When the constitutional text demands an unpopular result, judges cannot shirk from their responsibility. They might be criticized, but that's America. In addition ... when courts issue decisions that overturn longstanding traditions of policies without proper support in text or precedent, they cannot and should not be shielded from criticism."

From left, Georgetown Law Professor Vicki Jackson, Supreme Court of Arizona Chief Justice Ruth McGregor, Supreme Court of California Chief Justice Ronald George, and Legal Times Supreme Court Correspondent Tony Mauro discuss judicial selection and removal during a Thursday morning panel discussion.

Attendees enjoyed several panel discussions over the two days addressing the judiciary's relationship to the public, the press and other branches of government. Thursday morning panel discussions focused on traditional justifications underpinning judicial independence and contemporary criticisms of court practices, as well as on efforts to control courts through the processes of selecting and removing judges. Another panel discussion, featuring former Members of Congress Tom Daschle, Newt Gingrich and Warren Rudman, involved a spirited debate over modern efforts to curtail judicial independence through legislation. Additional panel discussions focused on the public's understanding of the courts and the news media's role in shaping that understanding, as well as on ideas for improving the judicial system as a whole.

Participants were responsible for developing a list of actions they and others can take to help ensure that the judicial system remains fair and independent. Throughout the conference, attendees met in small working groups across the Law Center campus to brainstorm a range of ideas that the conference's steering committee will organize and present as formal recommendations in the weeks ahead. As reported by Stanford Law School Professor Pamela Karlan and Georgetown Law Dean Alex Aleinikoff, some of the concerns include:

Georgetown Law Dean Alex Aleinikoff addresses attendees during the Thursday luncheon.

-The need to strengthen civic education in the nation's schools;
-The role of special interest groups in the election of state judges;
-The need for judges to brief journalists on aspects of the judicial system that are frequently misunderstood;
-The debate over whether Supreme Court proceedings should be televised;
-Attempts to strip federal courts of jurisdiction and to institute an inspector general for the federal judiciary;
-The importance of providing citizens with access to the justice system through such organizations as the Legal Services Corporation; and
-The need to educate the public about the courts, such as through an annual "State of the Judiciary" address.

"I've been to other conferences but nothing similar to this," said Jeremy Berry of the Atlanta firm of McKenna Long & Aldridge. "This has been very useful. To collectively put our heads together in the small groups is excellent. Often people are [at conferences] and nothing comes out of them. But to work constructively toward solutions is very good."

Several conference participants said that the most difficult challenge ahead would be implementing the recommendations that they have generated.

The conference was refreshing for the "breadth of views" participants expressed about judicial independence, said Judge Diane Wood of the U.S. Court of Appeals for the Seventh Circuit. "I think it's been useful; we won't get anywhere on it until we get people to be honest about what they think." Still, while general solutions are a good start, she said, "Turning that into something specific will be quite hard."

Stanford University Law Professor Kathleen Sullivan, center, answers an audience member's question as ABC News Justice Department Correspondent Pierre Thomas looks on during a Thursday morning panel discussion.

Other participants also appreciated the frank discussions held over the two days, both during the panel discussions and in the working groups.

"The conference has had a very high level of honesty about the issues — a forthrightness," said Judge Carolyn King of the U.S. Court of Appeals for the Fifth Circuit. "Sunlight is a wonderful disinfectant, and we've had lots of sunlight — Lots of people speaking very honestly."

For Judge Randall Shepard, chief justice of the Supreme Court of Indiana, the most salient aspect of the conference was the "willingness of a majority of the Supreme Court justices to sit down and listen the whole day" as others shared their views about the Court's role and performance. "I don't remember another moment where members of the Court have sat there and listened to people talk about them," he said. "The image of it is just striking. It says an enormous amount about their commitment to this enterprise."

Participants also said they enjoyed sharing thoughts with others from a variety of professional backgrounds.

Solomon Watson, senior vice president and chief legal officer of the New York Times Co., said it was important to involve a diverse group of participants — lawyers and non-lawyers alike — because "the issues they are discussing are important to the public from all walks of life." It also provided for a dynamic two days, he said. "In 35 years as a lawyer, I've never been to a more interesting conference."

The same goes for those without legal training, the Washington Post Co.'s Graham said. "I'm a non-lawyer, and to the non-lawyers in the audience, this conference has been simply superb in educating people like me," he said. "The organization of this conference by the dean, faculty and students couldn't be better. If you talked with every single person in this [dinner reception] room, you could hear this same thing. I've been to a lot of conferences and this is definitely in the top one percent."

Participants represented "a great range and spectrum, and that's good," said the NAACP's Shaw. "People have different interests. Some are interested in tort reform. Some are interested in civil rights and liberties. And some are interested in the judiciary in general. Attacks on the judiciary leave me deeply concerned, particularly when people are questioning the legal values underpinning the question whether the judiciary rather than the executive branch has significant say in the Constitution. It's an important time."

In addition to hosting the conference, members of the Georgetown community contributed significant time and effort to planning it. Georgetown Law Dean Alex Aleinikoff served on the conference's steering committee, and President John J. DeGioia served on the conference committee. Former Dean and Professor Judith Areen served as one of the conference's two academic coordinators, and Professor Vicki Jackson participated in the panel discussion on judicial selection and removal. Meryl Chertoff, director of academic projects for Georgetown Law's Continuing Legal Education program, served as a key organizer for the entire conference.

Georgetown University President John J. DeGioia welcomes conference attendees on Thursday morning.

Additionally, three Georgetown Law faculty members contributed academic papers ahead of the Conference: Professor Jackson's "Packages of Judicial Independence: The Selection and Tenure of Article III Judges;" Professor Viet Dinh's "Threats to Judicial Independence, Real and Imagined;" and Professor Roy Schotland's "New Challenges to States' Judicial Selection." Several faculty members also served as small group discussion leaders during the Conference.

Aleinikoff said the Law Center was a natural fit to host a conference addressing issues about judicial independence. "These are obviously issues that are of great importance to this law school, located in the heart of the nation's capital just a short walk from the Supreme Court, other courts, Congress and the federal agencies," he said. "We think here that when sparks fly among the various branches of government, we feel the heat."

DeGioia promised that Georgetown's commitment to the issue would continue: "The Georgetown Law Center is guided by the idea that law is but the means, justice is the end," DeGioia said. "This conviction animates all that we do, including our involvement in this conference. Our purpose here is ultimately to help ensure that the law is just and that justice is done. This will require our attention long after we have published our last paper from this gathering. Georgetown University stands always ready to support further work and new efforts to keep these important legal issues at the forefront of public discourse."

 

-By Greg Langlois and Anne Cassidy