Judges need protection from physical, financial and political intimidation, while the public needs insurance against judicial tyranny. How to accomplish those dual goals was the subject of much discussion Tuesday morning at the 1st U.S. District Court Conference held at Wyndham Sugar Bay Resort on St. Thomas.
Term limits, election of judges, trust in the appellate process, and the spirit of the law (as opposed to its letter) were a few of the concepts representatives from all three branches of government threw out as ways to offer protection for the populace.
It got stickier when discussing the problem of protecting judges – especially from threats of physical violence.
Judge John E. Jones III was a speaker at Tuesday’s conference. Jones, a conservative Republican appointed in 2002 by George W. Bush, said he received a death threat immediately after finding against a Pennsylvania public school district that required the presentation of intelligent design as an alternative to Darwin’s theory of evolution. Jones, a U.S. federal judge for the Middle District of Pennsylvania, said that kind of intimidation can have a dramatic impact on judicial independence, and he faulted the conservative pundits with encouraging such threats.
As an example of overzealous punditry, Jones cited Fox News commentator Ann Coulter as saying, "We need somebody to put rat poisoning in Justice [John Paul] Stevens’ creme brulee," because of Stevens’ liberal views.
Decisional criticisms are valid, but threats are different," Jones told the audience of 300 lawyers, lawmakers and judiciary personnel that attended the conference Tuesday.
Most of the panel members seemed to feel there were enough safeguards in place to rein in the judiciary and expressed faith in their abilities.
Senate President Louis P. Hill said the law reflects humanity’s state of development and that judges need to make decisions that are "fundamentally right as opposed to the letter of the law." And in general he felt they did.
Former Gov. Charles W. Turnbull took it a step further, referring to judges as "guardians against the tyranny of the majority."
Among the three branches of government, the Legislature was held out as the one most often in danger of being swayed by popular opinion, and having the judicial branch around to act as an independent arbiter when constitutional issues arise is critical, Turnbull said.
Sen. Nereida Rivera-O’Reilly added that for senators, it is easy to want to "legislate away" people’s problems with the creation of new laws.
"But it is a very tiny majority of senators that makes the decisions for a much larger majority of 120,000 people, and when we make a mistake, it is appropriate for the judicial branch to step in," she said.
The independent structure of the judicial branch must not be tampered with, offered Turnbull, who spoke out against the election of local judges. If judges were to be elected in the territory, it would be nothing but a "popularity contest," and nothing would get solved, he added.
There have been instances throughout history where the courts have struck down legislation on both sides of the philosophical fence, but generally judges are trained not to interfere in legislative matters unless they have to, said Judge Anthony Scirica, chief judge of the 3rd U.S Circuit Court of Appeals.
"It’s a question that judges think about all the time," Scirica said. "But legislators also have to think about the constitutionality of what they’re doing, and the nature of the institution as a whole. There are times when matters are so important that the courts have to step in to make sure the law works in any number of circumstances."
Scirica pointed out it was ultimately the courts that eliminated segregation with Brown vs. The Board of Education.
But Erwin Chemerinsky, dean of the University of California-Irvine Law School, who moderated several panels, pointed out instances where the court failed initially to protect the citizens. He specifically cited the court’s failure to outlaw slavery and allowing the Japanese internment during World War II.
"The judiciary could have stopped it," he said, tossing off to the panelists, "so can we really trust judges."
Maybe trust is an issue, but Scirica said electing them wouldn’t change that. He spoke of a recent election in Pennsylvania where two candidates vying for seats on the state’s Supreme Court bench racked up $6 million in campaign contributions from groups with a "special interest" in the outcome of certain decisions.
"No system is perfect," Scirica said. "But the structure of the system, the way it’s set up makes a difference."
As for the current issues the court is wrestling with (specifically, abortion and guns), Scirica said, "We’ll be arguing about those for the next couple of decades."
Among the things that matter most in changing the societal tide are elections such as the recent presidential election and subsequent Supreme Court appointment of Sonia Maria Sotomayor, Jones said. "There is a balance that is struck; the pendulum does swing back and forth."
Other discussions throughout the day focused on the present and future makeup of the U.S. Supreme Court and recent landmark decisions, along with a debate on whether constitutional rights extend to residents in U.S. jurisdictions, such as the U.S. Virgin Islands, Guam and Puerto Rico.
Conference participants later called the day’s discussions "excellent" and said they were impressed by several of the panelists.
"I thought everything was very well organized," said local attorney Frank Schulterbrandt. "The topics were very contemporary and critical to the administration of justice here in the Virgin Islands. Bringing down Dean Chemerinsky was also a great move — he was able to bring a lot of perspective to the current situation in the Supreme Court."
Among the other panelists featured Tuesday were Chief Judge Frances Marie Tydingco-Gatewood of the District Court of Guam, former U.S. Ambassador Terence A. Todman and V.I. District Court Presiding Judge Curtis Gomez, who spearheaded the organization of the conference.
Several local attorneys, along with the clerks of both the V.I. Superior and Supreme Courts also spoke about the rules of the courts and how to effectively file cases and appeals.
