The Third Branch
California Lawyer

The Third Branch

Why we shouldn't take our independent judicial system for granted

July 2014

The author (center) as a boy in the mid-1960s, photographed in Jerusalem with his grandparents Siegbert and Charlotte Stein. Siegbert had been a judge in Berlin.

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Dear Governor Brown, September 2013

Sitting with a group of other lawyers and judges at a Los Angeles venue earlier this year, I am listening to distinguished appellate Justice Richard Fybel present his brilliant lecture, "The Absence of Judicial Ethics: The German Legal System 1933-1945." But I can't stop thinking about my grandfather, Siegbert Stein, who lived in Germany for the first 45 years of his life, including the years referenced in Justice Fybel's lecture.

For the happiest period of his life, my maternal grandfather was a judge in Germany's Weimar Republic. A decorated, twice-injured German Jewish hero during World War I, my grandfather was appointed to a court in Berlin after the war. By all accounts, he was a highly respected, smart, and effective judge. Though a stickler for judicial rules, he also had a profound sense of justice. He was a pillar of his community.

Adolph Hitler's rise to power dramatically altered his life. He lost his job as well as his standing outside the Jewish community, then in 1937 was forced to flee with his family (including my mother, then 9 years old) to British-controlled Palestine.

The fate of millions of others in those years was, of course, profoundly more tragic. But my grandfather never recovered from losing his homeland and his profession. A consummate Berliner, he couldn't adjust to the rough-and-tumble ways of Palestine and then Israel, after its independence. Though he sought a judicial post in his new country, it proved beyond his reach because he never mastered Hebrew. He ended his professional career as a minor municipal bureaucrat. I remember him as a loving, doting grandfather, but also as a beat-up, out-of-place man, enveloped in an aura of sadness and loss. 

Today we are nowhere near a point where judicial ethics are "absent" as they were in Nazi Germany. Yet my grandfather's experiences and Justice Fybel's analysis concerning events that happened 80 years ago on a different continent provide lessons and warnings that resonate and should guide us in California today.

One of the most important points is the critical necessity of an independent and impartial judiciary. The rise of Nazism was enabled by the implosion of Germany's justice-based judicial system. Justice Fybel chillingly demonstrates how the judges of the Third Reich maintained a veneer of due process, while proceeding to utterly dismantle justice. As Justice Fybel stated in a recent article: "[E]verything the Nazis did was 'legal' under the German legal system at the time." The Nazi judicial system utilized court hearings, written opinions, and an appeals process to demonstrate their actions were "just."

Yet this was all a façade.

According to a prosecutor at the time, the purpose of the People's Court was to "annihilate the enemies of National Socialism." And when the Nazis decreed that judges were to swear a personal oath to follow Hitler, rather than the German Constitution, not one judge in the entire country refused.

We shouldn't take for granted our vibrant and impartial judicial branch, which has served this country well for more than 200 years. But its independence is being encroached upon by at least three current realities: budgetary underfunding, the growing polarization of the American body politic, and the increasing role of money in judicial elections.

Across the political spectrum, the majority of Americans honor the ideal of an independent judiciary. However, in order to have a truly independent judiciary we must ensure that this branch of government is properly funded in a manner that permits it to maintain its autonomy and perform its critical tasks. In recent years, as both state and federal budgets have come under increasing constraints, courts have commonly been viewed and treated as "just another governmental department."

This is profoundly short-sighted. Cutbacks and long wait lines at, for example, the DMV or the Department of Fish and Wildlife are annoying and worrisome. However, they do not fundamentally undermine core tenets of our country's founders, such as the separation of powers and meaningful access to justice.

At the same time, the polarization of our political system has led far too many people to view judges through the prism of politics: They either belong to "our side" or to "the other side."

Watching an independent judiciary in action is not always easy. No matter where you are on the political spectrum, the results are sometimes infuriating. However, if we are truly committed to an independent judicial branch, we should recognize and applaud the real-life exercise of judicial independence in everyday jurisprudence.

When Chief Justice Roberts unexpectedly saves the Affordable Care Act or Justice Breyer upholds Michigan voters' ban on affirmative action that favors minority students, some are aghast. But independent jurisprudence is a legal and judicial ideal that goes beyond individual judges' political leanings. We should support thoughtful decision making, from left or right, rather than denigrate it by casting about for political motives.

The past decade has seen the emergence of another significant threat to judicial independence: expensive and partisan judicial elections. Though California has, by and large, avoided this worrisome trend, the same cannot be said of many other jurisdictions.

Across the country, there has been a steep rise in campaign contributions for judicial candidates. From 2000 to 2009, candidates in state supreme court races raised more than $211 million, two-and-a-half times more than in the previous decade.

The states that have seen the most of this campaign cash are those that hold partisan judicial elections. Empirical evidence suggests that partisan elections lead to increased partisanship among judges and an even more aggressive cycle of campaign solicitations and contributions. As a 2012 New York Times editorial argued, "requiring would-be judges to cozy up to party leaders and raise large sums from special interests eager to influence their decisions seriously damages the efficacy and credibility of the judiciary. ... Bitter campaigns ... make it much harder for judges to work together on the bench and much harder for citizens to trust the impartiality of the system."

One of the lessons of my grandfather's life is that the loss of an independent judiciary has very real, and terrifying, consequences for millions of people; consequently, we should never take such a fundamental core value for granted. Merely paying lip service to this ideal is not sufficient.

Daniel Grunfeld, a partner at Morgan, Lewis & Bockius in Los Angeles, heads its West Coast litigation practice.

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