The Ethical Foundations of American Judicial Independence

Most lawyers and many citizens could recall the federal constitutional basis for judicial independence. Article III of the United States Constitution mandates that positions be filled through appointment by the President and confirmation by the Senate. That formidable selection process almost invariably ensures that federal judges are intelligent, well educated, and professionally experienced. Those qualities are conducive to judicial independence. Additionally, federal judges enjoy the following constitutional guarantees: life tenure during good behavior, non-reducible compensation, and removal only through impeachment. These protections free federal judges from the need to behave in politically advantageous ways in order to keep their positions. They also insulate judges from retribution when they make unpopular decisions. However, these structural considerations alone cannot ensure judicial independence. While they are undoubtedly important to creating an environment in which judicial independence can flourish, ultimately, judicial independence depends on the ethical norms that regulate recurring threats to the judicial decision-making process. The principles of judicial ethics make a major contribution toward the independence of the American judiciary. These principles include those which prohibit ex parte communications and improper gifts, limit political activities of judges, require judges to avoid certain problematic relationships, and mandate recusal from cases involving closely connected persons. It is easy to take these norms for granted, but without them an independent judiciary could not exist. Absent these safeguards, the status, operations, and effectiveness of the judiciary would be vastly different from what it is today