Political Threats to Judicial Independence

Threats by members of Congress or the President to remove a judge from office for a particular decision can be classified as political threats.  Since such threats may imply that the judge should decide a case in line with the opinion of those making the threat, the judge’s independence is threatened.

Judge Harold Baer, Jr. of the U.S. District Court for the Southern District of New York was widely criticized for his 1996 decision to suppress drugs in a criminal case.  After Baer reversed his decision, some claimed he had bowed to political pressure and changed his ruling to get back into favor with politicians who had called for his impeachment, although Baer asserted that the changed ruling reflected his consideration of new evidence.

Political threats came from many sources.  In a letter to President Clinton, Representatives Fred Upton, Michael Forbes, and Bill McCollum wrote, “[w]e respectfully request that you join us in calling for his resignation from the federal bench.  He has turned his back on the millions of residents of communities like the one in this case who are prisoners in their own homes because of violent drug traffickers.”  [i]  Senator Dole wrote: 

Simply put, judges are not the only ones in our constitutional system who have ‘important responsibilities’ relating to the proper administration of justice in the federal courts.  The Legislative Branch, along with the President, has a significant role to play in ensuring that judges, no less than other officers of the United States, faithfully perform their duties under the Constitution. [ii]

Dole went on to write that, “It is my intention . . . to continue to call attention to judicial decisions, such as Bayless, that disregard the law.”  [iii]

Since Baer’s drug suppression decision centered around the constitutionality of a police search, the basis for Baer’s changed ruling  is particularly important. The legality of the search, which did uncover drugs, was governed in part by the Fourth Amendment to the U.S. Constitution.  All judges are duty-bound to uphold all laws and constitutional mandates—whether applying them to upstanding citizens or hardened criminals.

After Judge Baer reversed his initial decision, the defendant brought an appeal claiming that Baer’s failure to recuse himself from the case, that is, to ask to be removed from further decision making responsibility on the case and have a new judge assigned to it, was plain error.  She claimed that because Judge Baer was subject to widespread criticism and threats of impeachment, he was improperly influenced in his second decision.  On appeal, the Court of Appeals for the Second Circuit upheld Judge Baer’s second decision and noted the danger in requiring recusal in cases where the judge is being criticized for a decision, pointing out that politicians could use improper criticism as a means of removing a judge from a case they did not want him or her to hear.  [iv]

The fact that Judge Baer reversed his previous ruling is cause for concern about the implications for judicial independence.  U.S. District Judge for the Ninth Circuit Court of Appeals Alex Kozinski said:

What worries me is that the comments made by members of the political branches might have made it difficult for Judge Baer to change his mind without looking like he was caving in.  Essentially, it put him in a position that whatever he did—stay put, rehear the case, change his mind outright or recuse himself—he might be accused of yielding to political pressure.”

[i] The Judge Baer Controversy: Correspondence from the White house, Senator Dole, congressmen, and judges, Jon O. Newman, Judicature, Vol. 80, Number 4, January-February 1997.

[ii] Id.

[iii] Id.

[iv] For more information see: U.S. v. Bayless, 913 F.Supp. 232, U.S. v. Bayless, 921 F.Supp. 211, Second Circuit Vindicates Baer in Drug Case, New York Law Journal, Thursday, January 20, 2000.