Kennedy: Our judiciary is the envy of the world July 15, 2005 Senior Editor Regular News Kennedy: Our judiciary is the envy of the world Jan Pudlow Senior Editor As the first American judge to meet with 28 senior judges of Iraq at the Hague, U.S. Supreme Court Justice Anthony Kennedy witnessed their broken faces beaten by the former ruling tyranny that threw them off the bench and made them all the more dedicated to the rule of law.“I was able to tell the president that the Iraqi judiciary is a small island of integrity. I asked them what they wanted me to say when I got back. And they said, ‘Tell the president thank you for letting us, after 35 years, be judges again. You tell the American people thank you after 35 years for letting us attempt to establish the rule of law. Thank you for giving us our freedom.’”When Justice Kennedy delivered the keynote address at The Florida Bar’s Annual Meeting General Assembly on June 24, his strong message was that while in America the judiciary suffers attacks from partisan politics and special-interest groups, and even individual judges are singled out for criticism, our system of justice is the envy of the world.He called upon members of the bar to protect judicial independence by explaining the judicial process when judges’ opinions come under attack, and to make sure the most talented lawyers aspire to the bench.“It would be a tragedy if the American people ignored or neglected the idea of judicial independence, just when the rest of the world is on the threshold of gaining it for themselves,” Kennedy said.Kennedy — described by the New York Times as “a genial apostle of tolerance and consensus” and by his good friend 11th Circuit Court of Appeals Judge Gerald Tjoflat as “a goodwill ambassador for the legal profession of this country” — knows firsthand what it is like to be a judge under attack.Some notable conservatives are calling for his impeachment. He has riled the right with his decisions that struck down the death penalty for juveniles and prayer at public schools, and upheld abortion rights and gave constitutional protection to pornography.During his speech, Kennedy spoke of the loneliness of a justice trying to make the right decision.“Judges have the special capacity and sometimes the awful duty in deciding a case, and we cannot decline to decide the case. The lease is going to be terminated. The tenant is going to be evicted. The executioner’s switch is going to be pulled. And the judge has the loneliness and the difficulty and the awful power to make the decision and to make it, with the help of the bar, in the right way,” Justice Kennedy said.The term “judicial independence” is so overused in the legal profession, Kennedy said, that “people think of it as a guild protectionism idea, and the connotation sometimes comes out as judicial independence so the judge can do what he wants. It is just the opposite. Judicial independence exists so that a judge can do what he has to do or what she must do.”Even after 30 years as a judge, said Kennedy, who was appointed to the Ninth Circuit Court of Appeals by President Gerald Ford in 1975, he still often asks himself, “Why am I doing this?”“There is nothing wrong with having an instinct of judgment,” Kennedy said. “This is the way you get through your day. Say this is right, this is wrong. But the art of the law, the art of judging, is that you ask yourself, ‘Why am I doing this? Why am I thinking this?’ And you formulate a semantic phrase of verbal formulation and then you test it. You ask, ‘Is it logical? Does it make common sense? Is it fair? Does it accord with the law? Does it accord with the Constitution? Does it accord with my own sense of decency and ethics and morality?’ And if, at any point along the way, you think you might be wrong, you have to begin all over again.”That’s the way judges work, but they also need the understanding and support of both the bar and the public, he said.“If judicial independence is. . . subject to disengagement by the bar, disinterest on the part of the people, scorn on the part of the critics, then this valuable cornerstone of our constitutional system is at risk. You should not put constitutional structures at risk. History shows that, if they are destroyed, they won’t easily come back.”That is not to say that criticism of judicial decisions is bad, Kennedy said, “because the law thrives on criticism.”“The law lives in a universe of ideas. And ideas can’t survive unless they are tested, debated, and questioned,” Kennedy said. “There is nothing wrong with questioning what a court did or wrote or said or held. And remember, the law and the Constitution don’t belong to a bunch of judges and lawyers. It is the people’s.. . . The law lives in the consciousness of the people. And it cannot take root there unless there is understanding and acceptance.”The “strange irony,” Kennedy said, is that the judge who issued the decision or wrote an opinion is one of the few people who can’t talk about it to further that understanding and acceptance.But the bar can act, he said.“You are an intermediary. You are a translator. You build the bridge between the formality of the law and the more free and open discourse of an open society. That is your function. And if you, as lawyers, think the decision is wrong on its merits, you have the right, perhaps even the duty, to say so. There is nothing wrong with that. Judges aren’t immune from criticism and neither are their decisions.”But what about when criticism is directed not at the decision but at individual judges?Justice Kennedy said he doesn’t think it is proper for the bar “to have some rapid response team” issuing counter statements like in political campaigns, because “the law has a different time line. We want our society to reflect, to weigh, to consider, to think before they make their judgment. And it is of utmost importance that, when they do that, they recognize that the judicial process has been fair and honest and open, and they don’t criticize the process.”Lawyers “must defend the process in the right way,” Kennedy said.“You must encourage talented lawyers to go on the bench. . . . We cannot have a mediocre judiciary and sustain this magnificent rule of law that is a basic resource in this country and that is still the envy of the rest of the world.” The complete transcript of Justice Kennedy’s speech is available on The Florida Bar’s Web site at floridabar.org by going to the Online Media Center and looking under News Releases.