Introduction: The Voices and Groups That Will Preserve (What We Can Preserve Of) Judicial Independence

As the 1996 election year commenced, the leading issues of the day included welfare reform, late-term abortions, Bosnia, immigration, drugs, taxes, the budget deficit, and the budget impasse that had shut parts of the federal government. The hot national issues did not include judicial philosophy, federal judicial appointments, individual judges or particular judicial decisions. Within weeks, however, that changed, thanks to a single judicial opinion. On January 22, 1996, United States District Judge Harold Baer, Jr., decided a pretrial motion to suppress evidence in the then (and now) obscure New York federal drug prosecution of a woman from Detroit named Carol Bayless. Judge Baer decided to suppress almost eighty pounds of cocaine and heroin that had, he determined, been seized illegally, and also to suppress Bayless\u27 videotaped confession to being a drug courier, which was a fruit of the illegal seizure. In response, to put it plainly, political hell broke loose. Critics seized on two aspects of Judge Baer\u27s decision. One aspect was the obvious negative impact of the suppression decision on law enforcement in the particular case. By suppressing the drug evidence and the confession, Judge Baer effectively had ended the government\u27s ability to prosecute the defendant, who had confessed post-arrest that she was a regular drug courier between New York and Detroit. The other aspect was Judge Baer\u27s assertion, in his written opinion, that public knowledge of police corruption in Manhattan\u27s Washington Heights neighborhood made it reasonable, not suspicious, for people there to run when they see police officers looking at them. For these reasons, Judge Baer and his decision were subjected to vociferous, sustained public criticism. Although he soon reconsidered his decision and determined less than three months later that the drug evidence could be used because it had been obtained legally, the political criticism of Judge Baer did not cease—even after the 1996 election season had come to an end. The Baer episode is not simply an occasion to consider the facts of the Bayless case or Judge Baer\u27s opinions explaining his changing decisions. It also is an opportunity to consider judicial independence generally, and the societal forces that define and affect it at this point in our constitutional development. As the Baer episode demonstrates, judicial independence encompasses two distinct but related concepts of independence. One concept is individual judicial independence. This concept, which focuses on each particular judge, seeks to insure his or her ability to decide claims with autonomy within the constraints of law. An individual judge has this kind of independence when she can do her job without having to hear—or at least without having to take it seriously if she does hear—criticisms of her personal morality and her fitness for judicial office. The second concept is institutional judicial independence. It focuses on the independence of the judiciary as a branch of government. It protects judges as a class from actions by the executive and legislative branches of government and their constituent members. Both of these concepts—the independence of the individual judge and the independence of the judicial branch—are fluid and evolving. They constantly are defined and redefined by five types of voices that speak and get heard on issues of judicial independence. These are the voices of judges, politicians, the media, the judiciary and the legal profession