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Judicial Practice
The Need for an Independent Judiciary By Honorable John L. Nickels, Editors’ Note: The following is the complete text of the farewell speech presented by Justice John L. Nickels at the Annual Dinner in Honor of the Illinois Supreme Court sponsored by the Illinois State Bar Association, the Chicago Bar Association, and the Illinois Judges Association. The speech was given on December 11, 1998. INTRODUCTION Honored Clergy, My Colleagues on the Supreme Court, fellow Judges, attorneys, ladies and gentlemen. An age old principle and one that was greatly reinforced when I was in the Army was "Never Volunteer" However, after some considerable urging & cajoling by Chief Justice Freeman and my colleagues, "I Volunteered" to speak. I failed to follow that rule and now both you and I must pay the price. I will first present some personal data so that you may understand where I am coming from. "Sort of what makes this person tick?" Let me start by saying my wife Merita and I have seven adult children, a wonderful daughter in-law, wonderful sons in-law and twenty beautiful grandchildren. Six of our seven children are daughters. Let me tell you, the clothing, tuition, and weddings for six daughters, is enough to make a grown man cry. My life experiences are somewhat different from many people here, in that I come from an agrarian background. I was born and raised on a dairy farm in Kane County, and grew up in the thirties and forties. All through grade school and high school my siblings and I always had plenty of work to do – plus our daily chores. Our summers were filled with planting, harvesting, and baling of hay & straw. Somehow we did always seem to find time to hunt, fish, and do kids stuff. I attended a one room country grade school which consisted of one teacher for all eight grades and had a student body of usually about 15. The first duty of the day, for the older boys, was to build a fire in the school house hand-fired furnace and bring in a bucket of drinking water. Another character building amenity was outdoor plumbing. After grade school my parents decided I could use some further refinement and sent me to Marmion Military Academy in Aurora. It turned out to be a real culture shock, but with the help and patience of the Benedictine Monks, I completed my high school education. After high school, I stayed on the farm for the next 5 years. We farmed about 800 acres, milked 60 cows, and fed out a couple hundred cattle. I believe that growing up on a farm and working with the soil, livestock, weather and the many responsibilities of farming provided experiences that I have drawn upon for my entire life. The next major turn in my life occurred when I received my invitation from Uncle Sam via my local draft board. I spent the next 2 years in the Army. My hitch in the Army was a great experience. After my discharge from the Army I decided to get my undergraduate degree and then at the age of 27 went on to DePaul University’s Law School, here in Chicago. Following law school and a 3 year stint with a Geneva trial firm, I returned to my home town of Elburn. My law practice, of over 20 years, was primarily civil with an emphasis on litigation. Community Service during those years included positions on the Kane County Plan Commission, the Zoning Board of Appeals, bank board director, and an elected trustee of our local community college. This evening, I want to talk about Judicial Independence or more accurately, the need for an independent Judiciary. Granted, the judiciary is under attack from without. But, what I want to focus on this evening, while still citing attacks from the outside, is the need to address our own house, that is the Judiciary and the legal profession To begin, I quote from the President’s Page published in the December ’98 Florida Bar Journal by Florida Bar President, Howard C. Coker: "More than 200 years ago the Founders of our nation created a form of government that is now the model for the world. New democracies recognize the genius behind the system of checks and balances we have been blessed with for so long. The inherent advantage that at once separates and commingles the three different functions of creating, enforcing and interpreting laws among the three branches of government is the key component of our unique and successful system of self-government. A fundamental part of this system, one that foreign leaders recognize as a master stroke of government design, is the existence of an independent Judiciary - judges who are able to act without concern for the day-to-day whims of politics to protect every citizen’s individual liberties and to prevent a tyranny of the majority. For more than two centuries this separation of powers has worked to protect our freedom. Indeed, our progress as a society often has been forged by a Judiciary free from partisan politics; a Judiciary acting on the basis of what is right and just, not just what is popular; a Judiciary able to protect ordinary citizens from political groups, big government, and, sometimes, even each other. Today some self-serving political factions and misinformed citizens seem ready to destroy this delicate balance by attempting to inhibit judges from exercising their constitutional obligations of deciding cases fairly and impartially. Why? Simply because of some highly publicized rulings with which some political factions disagree. To place the Judiciary under this standard is to undermine the benefits to the public good that result from judges able to serve as buffers against society’s excesses." As early as 1906, Roscoe Pound warned that a major cause of public distrust of the legal system was what he described as, "the public ignorance of the workings of courts due to ignorant and sensational reports in the press". Judges and Courts are not immune from criticism nor do I think they should be and they are obviously not perfect – or free from error. But, when a Trial Judge fails to follow the law or commits error, the appropriate remedy is to go to the reviewing courts, not the media. In recent years the independence of the Judiciary of this country has come under attack in several different arenas. The criticism that is improper and incorrect, is the personal attack on a court or a Judge when the critics don’t happen to agree with a Judge’s application of the law to a particular set of facts. When the critics attack the court system and the Judge personally, they impact the delicate balance between the branches of our government. Many times they imply or infer that we should have rule by popular demand, Rule By Referendum. While the Executive and the Legislative branches of government are more directly impacted by popular demand, our judges and courts must follow our laws and constitution. We all have a duty to support and protect an independent Judiciary. To do otherwise would be to violate and corrupt the basic tenets of our democratic form of government. Our system of government requires judges and courts to make hard and sometimes unpopular decisions - that is our sworn duty. When special interest groups, media or groups with specific agendas misstate facts, withhold facts or attack the judges and court decisions that don’t happen to support their particular cause, they do a great disservice. There are many examples of attacks on Judicial Independence and they seem to be more numerous and the attacks more vicious as time passes. In addition, modern communications have made the dissemination of information, either good or bad, instantaneous. Bench-bashing used to be confined to the fringe of society. Unfortunately, it has moved closer to the mainstream. Today’s critics can be the President of the United States, state governors, state legislators, prominent members of Congress, , and yes – even members of the bar – seemingly each with their own personal agendas. That’s why it was puzzling—and in my judgement—totally inappropriate when Bill Clinton through his press secretary said he may ask for the resignation of a federal judge that suppressed drug evidence which had been seized in violation of the Fourth Amendment. You could expect the average citizen not to understand the judge’s rule in such a case. But Bill Clinton is not only President, but supposedly bright, a lawyer, and a former law professor. It is totally inappropriate for him to bring such criticism to bear and you would think he would understand how corrosive of our entire system his criticism can be. In order to maintain political neutrality, I further note that Bob Dole jumped on the politically popular band wagon. According to newspaper reports, Bob Dole said if the judge didn’t resign he should be impeached. Regardless of the short-term political expediency of such comments, they are outrageous. What can the Judiciary and the bar do in the face of these attacks? I think that we must first look to our own house. Again – tonight I direct my comments to the Judiciary and the legal profession itself. I believe it is absolutely critical that judges and courts to improve their image in the eyes of the public. If every day, every judge, in every court room, would perform their functions in a proper and respectful manner, it would do wonders for the public image of the Judiciary. We must earn the public respect for judicial authority every day. Both in the manner in which we conduct ourselves and in the substantive quality of our decisions. Judges and Courts must and I emphasize must, leave our personal agendas at home. We must hear and determine the facts objectively and fairly. We must, to the best of our ability, apply the law to the facts and rule accordingly. We must not be impacted by public opinion or clamor. We are not and cannot be social architects. We are not permitted to be law and order Judges, pro plaintiff Judges, or pro defense Judges. We cannot be more concerned about being retained or elected to higher office than we are about doing what is correct, fair, and just. We must remember our jobs are a public trust and belong to all of the people. It is the people’s office not ours. In selecting Associate Judges, the Circuit Judges must use the greatest fairness and objectivity in determining who the most qualified candidates are. Very often these new Judges rise up through the ranks and are in the system for the remainder of their careers. We must select only the best possible candidates. State’s Attorneys also have a role in the public image of the court. State’s Attorneys have a sworn duty to do justice. They are called upon to be advocates and that they must be. But there are parameters and limits. They must walk that fine line. In their exercise of prosecutorial discretion they must be keenly aware of what is fair and just. They must represent society but it must be within the pale of both the federal and state constitutions. In their selection, preservation, and presentation, of evidence, State’s Attorneys have an affirmative duty to not abuse or violate the constitutional rights of defendants. They must be ever vigilant of the testimony of their witnesses and make certain that it is presented fairly and accurately. They must be certain that they are not misleading the court or the jury. State’s Attorneys must counsel the police on proper police conduct in executing searches, procuring evidence and testifying under oath. All of this is so very important to not only doing Justice but to the overall image of the court and the entire Judicial system. Lawyers also, in both the private, and public sectors have an important role in the public image of the court. As stated by Abraham Lincoln: "A lawyer’s word is his bond." Lawyers must always remember and practice that truism in all ethical matters. We must be fair and courteous to our adversaries. Under the cannons of ethics, rules of common courtesy, and human dignity, there is really no place in our profession for what is commonly called, "RAMBO TACTICS". It is extremely divisive and rarely serves the client or the courts. Lawyers must not churn cases until the fees are obscene and the assets depleted and then settle the case. They must always keep the honest interest of their clients as their objective and must do it within ethical boundaries. We must not suborn perjury. We must not hide evidence or mislead the court. A truly independent Judiciary is possible only when the public accepts the legitimacy of judicial authority. Anything which undermines that vital public notion of justice undercuts the independence of the Judiciary. American courts—the defenders of our most precious freedoms, the protectors of the individual against big government—are held up as examples for the rest of the world. We must commit to promoting better understanding and recognition of the American judicial system to ensure that our judges are kept fair and impartial. I am sure that the media, special interest groups, the legislative and executive branches of our government all bear their share of blame for the inappropriate attacks on the Judiciary and I don’t mean to minimize their responsibility. However, all Illinois judges and the court system as a whole must strive constantly to provide the kind of a Judiciary in which all of our citizens can have belief, pride and confidence. If we can succeed in doing our part, I am sure our image will improve and it necessarily follows that the independence of the Judiciary will be strengthened. It is so important that we all strive to perfect and maintain a strong and independent Judiciary. It is my hope that my comments here this evening will help us all do our jobs better. All of the forgoing said, I have a short announcement that I am going to make this evening, in this very public setting. This announcement is directed to the bench and the bar. It is a great honor and privilege to serve as an elected Judge and especially to serve on the Supreme Court of the State of Illinois. I thank each of my colleagues on the court for their friendship and collegiality. You are all great judges and great people. It has been an honor to serve with you. I am going to retire from the Supreme Court at the end of this calendar year. I have authorized our public information officer to advise both the bench and the bar of my intent. This farmer’s son is going home. I am going back to the land that has always nourished my soul back to the land that I never really got off of my hands or out my heart. It will receive me again with open arms, I am sure. But the law, as we all know, is a jealous mistress. She will not easily relinquish her grasp. So as I look ahead, I recognize that I can never really leave the law. I shall always continue to reap the benefit of having acquired and developed a legal mind. I shall continue to read and keep up with what is going on because I know the state of Illinois will bear watching and its legal community will continue to shine brightly. It has been a wonderful ride. Thank you all so very much, and have a good evening. Honorable John L. Nickels was elected to the Illinois Supreme Court from the Second Appellate District in 1992. He received the ISBA’s 1998 Access to Justice Award for his valuable contributions as the Supreme Court’s liaison to the Lawyer’s Trust Fund. |
