O'Connor assails 'pervasive attacks' on judges and judicial independence
Post Date: February 2007
Anti-judge sentiment is a focus of international judicial conference at HLS.
Judges are under attack in ways that increasingly threaten the independence of the judicial branch, warned retired Supreme Court Justice Sandra Day O'Connor at a conference of international jurists held at Harvard Law School in December.
In her remarks -- which were echoed by judges attending the conference from other countries -- O'Connor, who co-chaired the event, decried an atmosphere of growing hostility toward the judiciary "in the halls of Congress, in state legislative bodies and by average citizens," citing recent threats by some members of Congress to impeach judges whose rulings refer to decisions by courts abroad.
O'Connor's warning on the rising tide of anti-judge sentiment was just one of the topics taken up by a mix of about 70 international jurists and academics at the conference, which was titled "Transnational Judicial Dialogue: Strengthening Networks and Mechanisms for Judicial Consultation and Cooperation."
"Recent decades have seen an explosion in judicial networking around the world," Dean Elena Kagan '86 told the plenary session of the conference, sponsored by HLS and the American Society of International Law. "This has given rise to what some have described as ‘an invisible college of judges.'"
Judges are no exception to the general trend toward professional networking, and many of them said they see networking as essential to defending judicial independence and to supporting the rule of law, especially in developing and newly democratizing countries.
Networking among judges worldwide has expanded considerably with the democratization of many formerly authoritarian regimes, the evolution of public international law beyond state-to-state relations and increased recognition of universal human rights, said South African attendee Navi Pillay LL.M. '82 S.J.D. '88, a judge of the International Criminal Court at The Hague.
Richard Goldstone, a former justice of the Constitutional Court of South Africa and the conference co-chair, credited the "invisible college" with giving him an opportunity to visit with colleagues in Alabama early in his tenure on the bench -- a visit, he said, that helped sustain him and gave him hope during "the dark days of apartheid" in his own country. (Goldstone is a visiting professor at HLS this spring.)
During the conference, a picture emerged of a community of judges whose members have much in common. "We all have the same problems," O'Connor commented.
But if judges constitute a kind of global community, each of them also lives and works within a country with its own national legal tradition, said HLS Professor Charles Fried, who was a member of the Massachusetts Supreme Judicial Court from 1995 to 1999.
Judges, Fried said, must understand that they are "from a certain community, picked by that community, to judge that community." To permit the impression that their loyalty is to some transnational elite is to erode the respect that is the source of their independence, he said.
One of the sharpest controversies connected with transnational judicial dialogue, at least in the United States, is the question of whether judges can properly look abroad for precedents to cite in deciding cases.
One of O'Connor's former colleagues, Justice Anthony M. Kennedy '61, ignited a firestorm of criticism last year for invoking the general consensus in the developed world against capital punishment, in two death-penalty cases before the high court. Some conservatives called for his impeachment.
Justice O'Connor didn't mention Kennedy by name but referred to efforts to impeach judges who cite international precedents as an example of the kind of attack that has become "pervasive in this country."
By Ruth Walker