Next Steps to Protect the Judiciary

Attendees of the Democracy’s Last Line of Defense symposium, May 26, 2022, in Chicago, were given instructions in how to use a design-thinking approach to solving the problem of protecting the rule of law and an independent, impartial judiciary.

The following suggestions came out of group discussions involving judges, corporate counsel, academics and representative of foundations and other nonprofit groups. The had their choice of several current threats to judicial independence. Here are the potential remedies they came up with.

Counter misinformation or disinformation about the courts that is spread through social media

• (Judges) When controversial decisions are handed down, include links in the formal ruling to videos and other materials that explain the role of the court and the laws at issue.
• (Judges and Corporate Counsel) Have a public information officer (PIO) or bar association representative available to the media to provide context and a quotable source of accurate information on the decision. Use language that everyone can understand, not legalese.
• The PIO could also prepare and distribute information packets on recurring issues, such as plea practices, sentencing and bail. Other educational packets could cover constitutional guarantees like Fourth Amendment protections against unreasonable search and seizure.
• Create a user-friendly, Amazon-like space online that provides accurate information on the role of judges and the importance of an independent judiciary to democracy.  
• Schedule regular meetings with local media as a form of outreach and education.
• Improve perceptions of courts by adopting a Ritz Carlton-like service model that aims to treat litigants and parties like royalty or friends. Create an individualized customer-service experience. Add small touches – such as calling people by their name, maintaining eye contact, leaning in, and being intentional – for a memorably pleasant experience.
• (Corporate Counsel) Develop a fact-check app, Truthy, equipped with all the information a person would need to understand how courts work and decisions are made.

Increase diversity on the bench to boost public confidence in courts, particularly in minority communities.

• (Judges) Start at the level of law students. Identify prospective candidates for law school early on in their educational careers. Cultivate mentorships with current practitioners.
• (Corporate Counsel) Focus on clerkships, which may be difficult for students from less-prestigious law schools to obtain. Create a certificate of preparation for clerkships that students could obtain through classwork. The National Judicial College could offer mentorships with its judicial alumni. Names of certified clerkship candidates could be provided to judges.
• (Foundations and other Nonprofits) Establish a robust program of attorney and law-student mentorships through the state bar association. Diverse practitioners would mentor students from similar backgrounds by providing advice on classes and the like. These attorneys would also “bring them into the rooms that matter” by introducing them to people they know and providing encouragement whenever they felt they didn’t belong here because most of the people around them don’t look like them.
• Extend the search for potential minority candidates by visiting schools and libraries, getting out into the community, making people aware of opportunities available to them.
• Offer incentives such as CLE credit for diverse practitioners willing to make these efforts.

Combat perceptions of partisanship…

… by ending partisan judicial elections

(Judges) Certain states require candidates in judicial elections to identify as members of a political party. Two alternatives:

1. Establish a bipartisan committee that evaluates judicial candidates; the evaluations would then be made public;
2. Have the local bar association develop a questionnaire for judicial candidate that would then be provided to the public. There would be questions about party affiliation.

(Academics) Relieve political pressure on judges by not making them run for office. Academics could provide decisions makers, particularly legislators, unbiased, robust research on alternatives to judicial elections.  

… by addressing “litmus test” social issues in judicial selection

(Corporate Counsel) Often a candidate’s – including a judicial candidate’s — position on social issues, such as abortion, immigration or gun control, becomes a primary benchmark for judicial selection or election. How could a genuinely well-intentioned person who is drawn to public service but doesn’t want to make their positions known on social issues get around this?

1. Look for opportunities to change the public’s perception that one’s position on a social issue would drive judicial decision-making. Develop a better narrative. Example: Ukraine’s president turned the negative of a military invasion into the positive of a David vs. Goliath story.
2. Find individual stories that to counter negative attacks. Example: Counter the narrative that only criminals and gang members are crossing the border with a story of an immigration judge who, after carefully examining the facts, determined that a family seeking asylum actually was being politically and physically persecuted in their country and that the United States should have a place for them if it’s the kind of country it claims to be.
   
   

Combat systemic racism within the court system

(Corporate Counsel) Judges have discretion in many areas, such as bail and sentencing decisions. How can they keep implicit biases from affecting those decisions?

Provide judges a digital tool that incorporates jurisdictional standards and records of past decisions. A judge might then have to explain any decision that deviates from the norm identified by the tool. The tool could thus encourage a judge to take a second look and check whether implicit bias might have shaping the decision. The same tool, shared publicly, could also provide greater transparency in decision-making.