J.A.I.L. News Journal
Judicial  Accountability  Initiative  Law
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Los Angeles, California                               September 9, 2008

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The Battle Lines are Drawn:  J.A.I.L. versus The Foreign Power 

A Power Foreign to Our Constitution


Mission Statement      JNJ Library        ederal J.A.I.L.

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The Preamble of J.A.I.L. Revisited

by Barbie, ACIC, National J.A.I.L.

victoryusa@jail4judges.org

 

Preamble.  We, the People of ____________________, find that the doctrine of judicial immunity has been greatly abused; that when judges abuse their power, the People are obliged - it is their duty - to correct that injury, for the benefit of themselves and their posterity. In order to ensure judicial accountability and domestic tranquility, we hereby amend our Constitution by adding the following provisions as Sec. ____ to Article ___, which shall be known as "The J.A.I.L. Amendment." 

[2/7/07 version]

 

Black's Law Dictionary, Revised Fourth Edition, defines "Preamble" as: 

    A clause at the beginning of a constitution or statute explanatory of the reasons for its 
enactment and the objects sought to be accomplished. [citations omitted] 

 

The reasons for J.A.I.L.'s enactment and the objects sought to be accomplished: 

Due to the horrendous amount of swill spewed out by the foreign power as propaganda against The J.A.I.L. Amendment (both the initiative and legislative forms), we find it necessary to revisit the Preamble to officially explain the reasons for J.A.I.L. and its objectives in the hopes of again showing the People the truth about J.A.I.L.

 

Note that the Federal J.A.I.L. Bill is slightly different. The following explanation applies to the state measures, mainly to the initiative.

 

1.  "We, the People of [whatever state applies]..."

Regardless of who actually authored the measure, whether a body politic or an individual, it is written on behalf of the People of the applicable state. There are reports that the Preamble of the 1787 Constitution for the united States was not written on behalf of the People, i.e., the common man, but on behalf of the plutocracy who framed said Constitution and signed it; that it doesn't apply to the People because they weren't a party to it. We take exception to that premise, since the Constitution is, by nature, a document written TO a government, FROM the governed. Therefore, the People being the governed, the Constitution, by definition, is necessarily written on behalf of the People to the government they have instituted. As defined by Black's, a constitution is "a charter of government deriving its whole authority from the governed."

 

J.A.I.L. relies upon the Declaration of Independence (DOI) as its foundation. See "To Enforce the Constitution,"  http://www.jail4judges.org/JNJ_Library/2004/2004-10-23.html. "The Declaration of Independence ... describes government as the body of men (mankind) created by the governed (The People) for the purpose of protecting the rights of The People-- thusly: ...That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed..." Id. Not only does "We, the People" refer to the governed, as opposed to the government, no matter who wrote the words, the Constitution IS "the consent of the governed." See "The Consent of the Governed is the U.S. Constitution" http://www.jail4judges.org/JNJ_Library/2007/2007-01-30B.html. "America's government institutions derive their 'just powers' from the Constitution, and the Constitution derives its authority from the consent of the people who have ordained and established it. Because consent is the only legitimate source of political power, government must rule according to the rule of law. --Ronald J. Pestritto, Ph.D" Id.

 

The J.A.I.L. Amendment is likewise a People's measure, as an amendment to the consent of the governed for the purpose of enforcing the Constitution; To Enforce the Constitution (supra). As Dr. Pestritto says above, "consent is the only legitimate source of political power," therefore only the People are authorized to determine the meaning and purpose of J.A.I.L. Government does not have such authority. Yet, as we have learned from the South Dakota election fiasco, there is a powerful secret cabal disguising itself as "government" that has fraudulently overcome the PeopleFor particulars, see www.sd-jail4judges.org. See also "What did the Show-Election in South Dakota REALLY Show?" http://www.jail4judges.org/JNJ_Library/2007/2007-01-11.html. The People must know and understand that the opposition to the J.A.I.L. Amendment is made up of this secret cabal that has usurped government. We refer to that regime as the "Foreign Power" since it is a power foreign to our Constitution, and therefore foreign to J.A.I.L.

 

2. "...find that the doctrine of judicial immunity has been greatly abused."

Next we see that the People are addressing the abuse of the doctrine of judicial immunity --not judicial immunity itself, but its abuse. The People have actually found that such abuse of the judge-made doctrine of judicial immunity has become a way of judicial practice, and a roadblock to redress of grievances:

    "In the American judicial system, few more serious threats to individual liberty can be imagined than a corrupt judge. Clothed with the power of the state and authorized to pass judgment on the most basic aspects of everyday life, a judge can deprive citizens of liberty and property in complete disregard of the Constitution. The injuries inflicted may be severe and enduring. Yet the recent expansion of a judge-made exception to the landmark Civil Rights Act of 1871, chief vehicle for redress of civil rights violations, has rendered state judges immune from suit even for the most bizarre, corrupt, or abusive of  judicial acts. In the last decade this 'doctrine of judicial immunity' has led to a disturbing series of legal precedents that effectively deny citizens any redress for injuries, embarrassment, and unjust imprisonment caused by errant judges."
JUDICIAL IMMUNITY VS. DUE PROCESS: WHEN SHOULD A JUDGE BE SUBJECT TO SUIT? Robert Craig Waters  http://www.cato.org/pubs/journal/cj7n2/cj7n2-13.pdf 
 
In no other area of American life are public officials granted license to engage in the abuse of power:
   "Under the current doctrine, any act performed in a 'judicial capacity' is shielded from suit. Thus, the simple expedient of disguising a corrupt act as a routine judicial function guarantees immunity from suit. In no other area of American life are public officials  granted such license to engage in abuse of power and intentional disregard of the Constitution and laws they are sworn to defend." Id. 
 
That is why the spokesperson for the judiciary, Sandra Day O'Connor, and others of her ilk, as a way of disguising their corrupt acts, continually say that J.A.I.L. is out to "punish judges" for their routine judicial function of making decisions. They know it isn't true, but it's expedient!
 
The Supreme Court of the United States (SCOTUS) has created the climate for this abuse of judicial power:
    "Not only did the majority offer a complete distortion of congressional intent but it also decided that the phrase '[e]very person.. shall be liable' meant every person except judges. Yet Congress clearly had intended to remedy a serious injustice being inflicted on  innocent people by corrupt local officials, including judges. In effect, the Supreme Court created a new rule of statutory construction that judicial immunity is to be favored over congressional intent, and only express language in a statute will limit the doctrine."  Id.  
 

If the SCOTUS was actually a branch of government, would it be authorized to rule in such a way that would allow a serious injustice to be inflicted on innocent people by corrupt judges? Of course not! The Court clearly operates under a jurisdiction foreign to (in blatant violation of) the Constitution:

    "Even 'grave procedural errors' do not deprive a judge of immunity, ruled the Court,  because 'immunity attaches to any act performed in a judicial capacity.' The Court noted that the judge had signed the sterilization petition as a judge; and it dismissed objections that failure to observe formalities rendered the act nonjudicial. .... The effect was plain: under the doctrine of judicial immunity, a victim can be forced to bear the full burden of a serious, irreparable injury inflicted by a state-court judge in blatant violation of the Constitution." Id. 

 

See "HOW THE JUDICIARY STOLE THE RIGHT TO PETITION  - JOHN E. WOLFGRAM"

http://www.liamsdad.org/court_case/civilrights/2007_06_12_documents/10_petition.pdf.   

The Supreme Court, by judicial fiat, actually stole the entire Constitution and the ability of the People to exercise their right of redress. That is not a government function. See also
"The Case Made For J.A.I.L." 12/8/03 Based on "How The Judiciary Stole The Right To Petition" Written by John E. Wolfgram, B.A., J.D., Constitution Researcher
http://www.jail4judges.org/JNJ_Library/2003/2003-12-08.html.  Wolfgram correctly attributes this theft by the SCOTUS to its ruling on "judicial immunity":
    "Immunity abridges the right to redress grievances with government. This aspect demonstrates that sovereign immunity is unconstitutional and irrational. The reason: The right to petition government for redress and governmental immunity from redress, are direct contradictions. The former is our First Amendment. The latter is the progressive result of Supreme Court decisions."  Wolfgram (supra) 
 
Wolfgram goes on to say: "The Court has often acknowledged that the alternative to judicial process is force. Therefore, in so abridging the right of the people to obtain just redress through the compulsory process of law, the judiciary is setting the people up for violence against government by refusing to hear their cries for justice. That is our government waging a war of oppression against its own people." Id.  "Government" does not wage war against the People; rather than government, it is a "jurisdiction foreign to our Constitution" under color of government that is doing so.
 
3.  "... that when judges abuse their power, the People are obliged -it is their duty- to correct that injury, for the benefit of themselves and their posterity." 
J.A.I.L. would take effect only "when judges abuse their power," not otherwise; not when any decisions are made in the normal course of proper judicial conduct, whether the decision is one we "like" or not. J.A.I.L. does not act on decisions of a case. See "Decisions, Decisions, Decisions!" http://www.jail4judges.org/JNJ_Library/2006/2006-11-22.html. J.A.I.L. is not about matters we "like" or "don't like," but about compliance with the Constitution, usually in matters of judicial procedure, whether we like it or not.
 
Rather than judicial decisions the People "don't like," the issue is the People's right to judicial accountability the judiciary "doesn't like"
     "The issue is the People's Right to hold government to constitutional restraint. If they cannot hold it to account for such violations, then either the Constitution is not the supreme law, or the supreme law does not bind government. [It doesn't bind the counterfeit "government" -j4j] The supreme law of the land must be as binding on government when government doesn't like it as it is on citizens whether they like it or not. If either the people or government do not like certain constitutional clauses the remedy is to amend the Constitution, not 'interpret' it contrary to its express and contextual meanings. The Constitution contains its own terms for amendment, and 'judicial fiatis not among them."  Wolfgram (supra) 
 
Every time you see or hear buzz words such as "disgruntled litigants," "decisions they don't like," "unpopular decisions," "official rulings," "punishing judges," "intimidation," etc., you can know that it is part of the propaganda the opposition is peddling to the People, depending on the fact that the People are ignorant of the truth and haven't read the J.A.I.L. Amendment itself, especially the Preamble. Clearly the Preamble specifies when the People must act, to wit, "when judges abuse their power" --no other time is indicated-- NOT when decisions are made!
 
Next, the Preamble specifies what the People must do and why, "when judges abuse their power." Remember, the Preamble states that J.A.I.L. concerns judges' abuse of judicial immunity. When that alleged abuse occurs, the Preamble states that the People "are obliged to correct that injury" because "it is their duty" to do so "for the benefit of themselves and their posterity." Such action on the part of the People is NOT an option. The Declaration of Independence, upon which J.A.I.L. is founded, puts it this way:
    "[W]hen a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them [the People] under absolute despotism, it is their right, it is their duty, to throw off such government [i.e., such pretended government], and to provide new guards for their future security." 
 
Ask yourselves: Has a long train of abuses and usurpations occurred? Is 200-plus years a long enough train of abuses? Has that train of abuses/usurpations invariably pursued the same object, i.e., taking control of the People by conquest rather than by consent? Has that train of abuses evinced a design to reduce the People under absolute despotism? See "Despotism by Default,"  http://www.jail4judges.org/JNJ_Library/2007/2007-12-20.html
 
If the answer to those questions is "YES," then it is the right and duty of the People to terminate such despotic regime that is pretending to be "government,"  and to replace it with "new guards," i.e., a new constitutional government that will respect and protect the People's rights, for their future security, i.e., "for the benefit of themselves and their posterity." If you see or hear anything other than that objective being claimed as attributable to the J.A.I.L. Amendment, you can know that it, too, is part of the propaganda swill being fed to the People, assuming that they haven't read and understood the Preamble of J.A.I.L. and will remain ignorant of the truth.
 
When the People cannot rely on the Supreme Court to take its proper role as government and be the true guardian and protector of their rights in practice (not just in theory); but instead rule to protect the judiciary at the cost of protecting the People's rights, even in direct violation of the People's Constitution to which they take an oath, the People have the duty to correct that abuse of power:
     "The Stump test for immunity affords no impediment to a corrupt judge. At best, it cloaks a judge with immunity if he merely indicates his official status while performing any act not expressly prohibited by law. At worst, it offers a road map for corruption with total impunity. Those subject to a corrupt judge's power may find little comfort in the Supreme Court's pronouncements that judicial immunity in effect is a necessary evil, the price to be paid for a 'fearless' judiciary. Waters, (supra)  http://www.cato.org/pubs/journal/cj7n2/cj7n2-13.pdf  
 
The Supreme Court insists that a sweeping immunity shield is necessary for an impartial judiciary. Is an "impartial judiciary" free to violate the Constitution and People's rights? Yes they can if they are a power foreign to the Constitution that has usurped government.
     "Yet the Supreme Court insists in the strongest of language that a sweeping immunity shield is necessary for an impartial judiciary. Permitting dissatisfied litigants to sue judges, argues the Court, 'would contribute not to principled and fearless decision-making but to  intimidation.' Under this viewpoint, immunity is not for the benefit of the malicious and corrupt but for the benefit of the public, whose best interests are protected by an independent judiciary. If errors are committed, the proper remedy is appeal.Id. 
 
How can unconstitutional court procedure, especially the violation of Due Process of Law, lead to "principled" decision-making? The Court doesn't talk about any unlawful procedure which it routinely administers with impunity before any decisions are made. That's what J.A.I.L. addresses-- unconstitutional procedure, NOT decision-making! The Amendment provides that immunity shall not shield such violations, set forth in ¶2 "Exclusions of immunity." Now we know where Sandra Day O'Connor gets her rhetoric:
     "If the [J.A.I.L.] amendment passes, it would eliminate judicial immunity, and enable a special grand jury to censure judges for their official legal determinations. [Remember 
"the simple expedient of disguising a corrupt act as a routine judicial function"? Waters (supra) -j4jAlthough the amendment's supporters claim they seek a 'judicial accountability initiative law' (JAIL), they aspire to something far more sinister -- judicial intimidation.
The Threat to Judicial Independence by Sandra Day O'Connor - Sept. 27, 2006

http://online.wsj.com/article_email/SB115931733674775033-lMyQjAxMDE2NTI5NzMyMTc3Wj.html   

 
The mindset of the Foreign Power, of which the SCOTUS and Ms. O'Connor are, is that they don't believe in accountability to the People  because they are the sovereign power and the People are their subjects. They function in a jurisdiction that is foreign to the Constitution and foreign to popular sovereignty. If the People seek accountability, the despots cry out "Intimidation!" That is a sure sign of cowardice for which they must hide behind "a sweeping immunity shield."  
 
4. "In order to ensure judicial accountability and domestic tranquility, we hereby amend our [state] Constitution by adding the following provisions..."
The Preamble closes with the general purpose of the J.A.I.L. Amendment, being "to ensure judicial accountability" which in turn will bring "domestic tranquility."
 
Accountability to the governed, i.e., to the People, of those who rule is inherent in nature
     "But accountability—the accountability of those who rule or govern to the governed—is inherent in the nature of all democracies. Such accountability, of those who govern to those who are governed, is indeed the aim or purpose of all democratic governments to ensure that government consists of mechanisms or legal processes through which the government is accountable and can be held accountable by the people served. Indeed, the rule of law itself is a two-edged sword. It not only ensures the protection of rights but also enforces responsibilities. Its protections are meaningless if requirements of the law are not obeyed or enforced. It provides that those who rule as well as those who are ruled must be accountable to legal requirements and for the proper performance of their respective responsibilities. No one is either above or beneath the protections or requirements of the law." THE IMPORTANCE OF JUDICIAL INDEPENDENCE AND ACCOUNTABILITY by Roger K. Warren, President, The National Center for State Courts http://www.ncsconline.org/WC/Publications/KIS_JudIndSpeechScript.pdf
 
The judiciary are not exempt from accountability; they must be held accountable to the  
People for the proper performance of judicial duties pursuant to the rule of law: 
     "The rule of law ensures that all government officials are held accountable to those in whose name they govern: to prevent corruption and abuse of power; to ensure that the laws that are enacted truly reflect the will of the people and the fundamental values and interests expressed in the Constitution; and to ensure that all government officials perform well their responsibilities. The judiciary is not exempt from these principles. Judicial officials, like all government officials in a democracy, must be accountable to the people for the proper performance of their duties." Id.
 
The Foreign Power and its media partners, such as the New York Times, contributes to the swill that J.A.I.L.'s banner of judicial accountability is "profoundly misleading" and "add[s] up to an assault on a fair and independent judiciary":
      "Nearly obscured by the struggle for control of Congress, there is another important battle in a handful of states over measures aimed at punishing judges for their official rulings and making them more captive to prevailing political winds. These measures all hide behind the superficially appealing but profoundly misleading banner of judicial accountability. And, taken together, they add up to an assault on a fair and independent judiciary. Voting for Judicial Independence  New York Times,  November 2, 2006
 
Ron Branson of J.A.I.L. responded by saying: 
     "I am not against true 'judicial independence.' We need an independent judiciary that rises above politics and human emotions. But if 'judicial independencemeans independent of the Constitution which they have sworn to uphold, then mark me down as opposed 
to judicial independence.  A runaway 'independent' judiciary that makes up and enforces its own laws as it goes, is certain to bring the entire judiciary into contempt and disrepute, 
causing the judiciary to have to publicly defend themselves at every stage while  
descending into their own quagmire and destruction. The truth is that JAIL4Judges is the best thing that could ever happen to the judiciary to protect it from its own demise." Id.
 
Enhanced measures of accountability will actually reinforce independence
     "As there will always exist a certain tension between accountability and independence, the timing of each provides some degree of relief.  Independence addresses freeing the judiciary from prior control of its decisions. On the other hand, accountability focuses on having mechanisms in place by which the judiciary as an independent body is required to explain its operations after the fact. Since greater transparency is often the key to both, enhanced measures of accountability can often actually help to reinforce independence."  
(pg.52) 
GUIDANCE FOR PROMOTING JUDICIAL INDEPENDENCE AND IMPARTIALITY http://www.ifes.org/publication/0e49c032c28f9e60a181630f281eda5a/judicial_independence.pdf
 
This is must reading on the interaction of judicial independence and accountability, especially Part IV. Major Themes, Sec.A . For example:  
     "For decades, increased independence has been perceived as central to strengthening judicial performance. More recently, it has been joined by another element, the demand for greater judicial accountability, with some critics arguing that absent this second factor, the drive for independence may go too far, producing a variety of new problems. This comes as a nasty surprise for some judiciaries. .... [A]ccountability should not be understood as the diametric opposite of independence; the interaction of the two concepts is more complex. However, a worldwide tendency to augment judicial independence has raised new issues and in turn generated an interest in accountability as a means of addressing them." (pg. 161) Judicial Independence and Judicial Accountability: The Shifting Balance in Reform Goals - by Linn Hammergren
GUIDANCE FOR PROMOTING JUDICIAL INDEPENDENCE AND IMPARTIALITY  
(supra) 

 

Whoever speaks about "judicial independence," such as the New York Times or Sandra Day O'Connor, must clearly define what they mean by that term:  

     "Many people simply assume that there is agreement about what judicial independence is, thereby relieving them of the duty to state precisely what they mean when invoking the term. Many others are quite clear what they mean by judicial independence, but their definitions are so obviously the product of the academy (or of self-interest) that they are ill-suited for the practical business of government."  What Do We Mean by "Judicial Independence"? by STEPHEN B. BURBANK
http://moritzlaw.osu.edu/lawjournal/issues/volume64/number1/burbank.pdf 
 
It appears to some that "judicial independence" means "zero accountability" based on observation of judicial conduct assuming raw power:
    "The shortest line between power and criminality is zero accountability, which is exactly what 'judicial independence' means. We have allowed the federal bench to demonstrate the truth of that statement too many times."
JUDICIAL INDEPENDENCE: ZERO ACCOUNTABILITY

 

Such conduct demonstrates the fitting term of "Judicial Megalomania."  My dictionary defines "megalomania" as:  "1. a mania for great or grandiose performance [synonym for mania- "insanity"]; 2. infantile feelings of omnipotence esp. when retained in later life."   What image do you get when reading those two definitions, especially the second one?  Can there be any doubt why accountability to the People isn't part of the judicial  agenda? One need not make a medical diagnosis of this mental illness, but need only to observe judicial conduct and their reaction to the public expecting accountability therefor --sheer panic!   

 

A thorough definition of "judicial independence" is given at:

A DEFINITION OF JUDICIAL INDEPENDENCE by Kristy Richardson
http://tlc.une.edu.au/lawjournal/pdf/UNELJ_2-1_Richardson.pdf 
The basis of the definition (pg.5)
     "The construct of ‘authority' is the defining characteristic, and forms the basis of the definition of judicial independence. ... [T]he construct of ‘authority' with its own indicative elements brings together and strengthens the constructs of ‘insularity' and ‘impartiality' to form a comprehensive and conceptually relevant definition of judicial independence. The elements of the construct of ‘authority' are (i) how the law is made (ii) public confidence (iii) media relations / judicial reticence and (iii) administrative law.
 
The following three excerpts are taken from the above Richardson study:
 
1. The scope of judicial authority is the keystone of judicial independence (pg.4)
     "[T]he scope of the judiciary's authority as an institution or, in other words, the relationship of the courts to other parts of the political system and society, and the extent to which they are collectively seen as the legitimate body for the determination of right, wrong, legal and illegal should be incorporated into the definition of judicial independence.Christopher M Larkins, "Judicial Independence and Democratization: A Theoretical and Conceptual Analysis" (1996) 44 American Journal of Comparative Law 605, 610.
 
 2.  Public understanding and appreciation of the judicial role forms a substantial source of support for the independence of the judiciary  (pg.14) 
     "It would be a mistake to think that the protection of the independence of the judiciary rests only in legal provisions. As has already been demonstrated, those provisions are in some respects inadequate, incomplete or susceptible to ready repeal or circumvention. A much more substantial source of support is community understanding and appreciation on the part which the judiciary plays in ensuring observance of the rule of law and the other values treasured in our form of society. Justice Michael Kirby, "Judicial Independence in Australia reaches a Moment of Truth" (1990) 13 Univ. of New South Wales Law Journal 187, 191.
 
 3. There is a lack of theoretical and conceptual attention to what is meant by "judicial independence" in articles and addresses by serving and retired senior judges (pp 2-3)
     "The last decade has seen a surge in the amount of writing about, and inquiries into, judicial independence in the common law liberal democracies. Serving and retired senior judges have adopted it as a central theme in articles and addresses. … The initial impression is of considerable diversity in approach and formulation of these definitions and rationales, but it is difficult to identify whether the differences are merely linguistic, in that different words have been chosen to express the same ideal, or semantics, in the strict sense that a different meaning is intended. The very uncertainty over whether substantive differences are intended illustrates the relative lack of theoretical and conceptual attention to what judicial independence is, and how it relates to other political and social values." 
Stephen Parker, "The Independence of the Judiciary" in Brian Opeskin and Fiona Wheeler (eds) The Australian Federal Judicial System (2000) 64-65.
 
Judicial independence is not an end in itself, but only a means to an end. The end is due process, fair trial
     "Judicial independence is a means to an end — the end is due process, a fair trial according to law. Judicial independence thus protects the litigants in court and all the people of the nation." Judicial Independence as a Campaign Platform by Shirley S. Abrahamson
 
On the other hand, judicial accountability is an end in itself
     "As we have seen, judicial independence is merely a means to an end. The end is the benefits that flow to the people from effective democratic government. Judicial accountability, on the other hand, is an end in itself. The accountability of all governmental power, including the judicial power, to the people is the end of democratic government. Absent judicial independence, the judicial power cannot be properly exercised so as to meet the people's rightful expectations." THE IMPORTANCE OF JUDICIAL INDEPENDENCE AND ACCOUNTABILITY (supra)http://www.ncsconline.org/WC/Publications/KIS_JudIndSpeechScript.pdf 
 
When judges talk about judicial independence as an end in itself, it causes the people to regard the judiciary as arrogant (i.e., demonstrating judicial megalomania): 
     "When judges talk about judicial independence as an end in itself, it can cause the public and other branches of government to think that the judiciary regards itself as superior to other branches of government, or is arrogant." Id. 
 
That is exactly what is shown by Sandra Day O'Connor and other anti-J.A.I.L. sympathizers when they cry about J.A.I.L.'s "attack on the independence of the judiciary," or "punishing judges for their official rulings and making them more captive to prevailing political winds." The truth is they don't like J.A.I.L.'s attack on their feelings of omnipotence!
 
We need to create in our judiciary, in direct contrast to the Supreme Court ruling in Stump v. Sparkmana culture courage (rather than cowardice) that treats corruption as not just illegal, but as unacceptable within the judiciary
     "You know as well as I that the proper exercise of judicial power in an independent judiciary requires great courage. An effective judiciary certainly requires competence and skills on the part of judges. But, more important, it requires courage, courage to do the right thing, moral courage. We need to create in our judiciaries a culture of courage, one that rewards honesty as well as punishes corruption. A culture that treats corruption as not just illegal, but as unacceptable to us within the judiciary. We need to create a culture within the judiciary in which those who would subvert the rule of law are subject to our own disapproval, even scorn, within the judiciary. A former justice of the United States Supreme Court has spoken of this need for resolve and for courage within the judiciary in this way: 'It is in vain that we insert Bills of Rights into our Constitutions as checks upon legislative power unless there be firmness in our courts, in the hour of trial, to resist the fashionable opinion of the day.' "  THE IMPORTANCE OF JUDICIAL INDEPENDENCE AND ACCOUNTABILITY (supra)

 

Judicial independence is not judicial isolation; the judiciary cannot operate in a vacuum
     "The judiciary cannot operate in a vacuum. Judicial independence is not judicial isolation or judicial separation. Separation begets suspicion; suspicion begets mistrust. Independence is served through interdependence. In the U.S., this thought was expressed by one of the justices of our Supreme Court in this way:  'While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but inter-independence, autonomy but reciprocity.' " Id. 
 
The biggest threat to judicial independence is perhaps the judiciary itself, e.g., the Stump v. Sparkman Court
     "But perhaps the biggest threat to judicial independence in many of our judiciaries, including in the U.S., is ourselves. We have a cartoon character in the United States named Pogo who said that 'we have met the enemy, and it is us.'  We must look at ourselves and our own performance honestly.  ... Legitimate dissatisfaction with the judiciary is a far greater threat in the long run than improper influences. Id.
   
The absence of public trust inevitably leads to persistent threats to judicial independence
     "But when they [the public] think that the courts are unfair, that the judges are not neutral, that the judges are not honest, that the judges are not trust worthy, that the judges do not have integrity, these are issues of character, not competence—when the public feels that there are character flaws in the judiciary, that's what undermines their trust and their confidence in the entire justice system. And this threat, I think, is our greatest threat in America, because the absence of public trust will inevitably result in persistent threats to judicial independence."  Id.                          

 

In return for judicial independence, the public expects judicial accountability. J.A.I.L. is a condition for judicial independence
     "In consideration for judicial independence, the public expects proper and effective performance. The judiciary is accorded independence as a means to the end that we perform the job well, decide fairly, and administer the laws justly. We are public servants. If we do not perform our responsibilities well, we will inevitably face persistent attacks on our own independence. To state it different, our own poor performance will be the door through which the strongest challenges to our judicial independence will enter. If we take no responsibility for our performance, we are in no position to complain about the attacks upon our independence." THE IMPORTANCE OF JUDICIAL INDEPENDENCE AND ACCOUNTABILITY (supra)http://www.ncsconline.org/WC/Publications/KIS_JudIndSpeechScript.pdf  
 
     "An accountable judiciary without any independence is weak and feeble. An independent judiciary without any accountability is dangerous." --Stephen B. Burbank,  
David Berger Professor for the Administration of Justice, University of Pennsylvania
 
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