Judge Cynthia Hall, U.S. Court of Appeals, Ninth Circuit, Pasadena, California, is chair of the Committee on International Judicial Relations, established by U.S. Supreme Court Chief Justice William H. Rehnquist to encourage international judicial exchange. In an interview with contributing editor David Pitts, Hall says that although there are universal aspects of judicial independence, maintaining and strengthening it is a process unique to each society.




Question: What is the Committee on International Judicial Relations and
what is its purpose?

Judge Hall: The Committee on International Judicial Relations was established to respond to requests for assistance from judiciaries in foreign lands. Its principal objective is to help develop independent judiciaries around the world. To this end, it facilitates overseas visits by U.S. federal judges and visits to this country by foreign judges. It provides training and also gathers information about judiciaries in as many countries as possible and makes that information available to interested parties, including U.S. judges. The committee was established five years ago. Its membership includes federal judges from all over the United States.

Q: How effective is it?

Judge Hall: It's still new, but I believe it is very effective. For example, the committee sponsored the first conference of the supreme courts of the Americas. Five U.S. Supreme Court justices participated. The committee has been sharing information and improving relations with the judiciaries in the emerging democracies of Central and Eastern Europe, and in the Russian Federation. The committee also has been active in Asia and Africa. In South Africa, for example, it is going to help train black judges so that the legal system there becomes more representative of all the people.

Q: Are there typical assistance needs?

Judge Hall: In many developing countries, the lawyers need help; the bar associations need help; and the law schools need help. But we have concentrated on assisting in the development of independent judiciaries. We ask, "How can we help you? Tell us what you want us to do for you." We plan a program around the needs as seen in the particular country concerned, not as we see them. Each program is tailored to a particular country and the status of its judiciary at the time. The program may be conducted in the country concerned or in Washington, D.C.

Q: Naturally, the judicial system in every country is unique because the history, political development, and culture of every country is unique. But are there some attributes that are essential to an independent judiciary in every country?

Judge Hall: We don't try to get any other country to use our system for those very reasons. We go in to help them establish an independent judiciary under their system. But we can tell them what has worked in the United States. Many foreign judiciaries are under the domination of the ministries of justice, which often control the appointments process and salary structure. We have found that judicial independence can be better safeguarded if the courts are a separate branch of government and have control of their own budget and staff. We have achieved that in the U.S., but it took many years to fully realize it. Also important are key constitutional safeguards, such as tenure for judges with removal only through impeachment, assurance that salaries are adequate and will not be reduced while on the bench, and protection for judges against political interference. Naturally, there are limits to the independence of the judiciary. In the United States, for example, the budget for the judiciary depends on Congress, which also determines our jurisdiction. No part of the government is totally independent of the other branches. But in this country no politician can tell a judge how to decide his case. That is very important.

Q: How significant is judicial review of constitutional questions to the concept of judicial independence?

Judge Hall: I don't think it's essential, but certainly it's important. It provides a means to protect the individual from an over-reaching government. But it is a powerful tool and must be used wisely. In our system, judges do not decide constitutional questions unless necessary to the decision of the case. If there are any other grounds for deciding the case, you decide on that ground before you go to a constitutional ground. Furthermore, you can raise a constitutional issue in the judiciary only within the context of a live, active case. The judiciary in the United States does not issue any advisory opinion. This helps us keep a balance in how we use this extraordinary power. It is used seldom and, I believe, wisely.

Q: Should judges be elected or appointed, and should they serve for life? Can judges be really independent unless their tenure is for life?

Judge Hall: It is hard to have an independent judiciary if judges have to stand for election. We have diversity in this country in the manner that judges are selected. Some states require that judges run for election. That is not the case in the federal system. Federal judges are nominated by the president and confirmed by the U.S. Senate. This is an open and public process in which the pros and cons of confirming particular individuals are fully aired. But once they are confirmed, it is not possible to remove them unless they are impeached, which results usually from the judge having been guilty of committing a felony.

Q: How important are qualifications for judges?

Judge Hall: Interestingly, in the United States, we don't have any written requirements for the qualifications of federal judges, although most states do for the state courts. But I think the federal appointments process, requiring a public confirmation proceeding, encourages the president to seek highly-qualified lawyers.

Q: There are great pressures on American courts because of the increase in litigation and the backlog of cases. Presumably, these pressures are even greater in countries where the judiciaries cannot be funded as generously as they are in American courts. How compromising is this to the maintenance of the rule of law and to the smooth, efficient functioning of an independent judiciary?

Judge Hall: All courts share this problem: the increase in cases and a more crowded docket. First, it is important to have continuous trials, which we do in the United States. Once you start, you must continue until the trial is concluded. In many countries, they have discontinuous trials; one aspect of the case can be tried at one point and it may be months before the next aspect is tried. In addition, in the U.S., the judge controls the speed of the docket and often pushes to move cases forward. That helps as well. But still we have a problem with judicial backlog. In recent years, we have worked very hard on what we call case management. Reforms designed to speed the process have included required settlement conferences, mandatory mediation and arbitration, and plea bargaining in criminal cases. These measures have cut down on the number of time-consuming trials. Modern technology, particularly computers, also has been of help in streamlining the process. This whole issue of case management is very important and we have sought to make foreign judiciaries aware of some of our successes in this regard. But we still face the problem, which is exacerbated to some degree by Congress expanding our jurisdiction without increasing our resources to handle the increased load. That is a problem in many other countries, also.

Q: For a country's judiciary to be independent and fair, it must be seen.
How open to the public and to the media should courts be? How open are they in the United States?

Judge Hall: In this country, you are entitled to a public trial. This means the public is allowed to come into the courtroom and witness a trial, and courts are only closed in the rarest of cases. In recent years, however, we have wrestled with the question to what extent the courts should be open to the wider public through television, by allowing cameras in the courtroom. Does television promote openness or does it skew the process by affecting the way lawyers and judges act and witnesses testify? In the federal system, we now have a policy that no cameras are allowed in criminal trials. Federal judges have an option, however, in civil cases. On the state level, some states have adopted open courtrooms, which includes allowing television, although after the highly publicized murder trial of athlete O.J. Simpson, a number of the judges in California, where the trial was held, have decided to opt out of television coverage. Having open courtrooms in some form is what's important. Now the question also is, "Is everyone in the United States entitled to sit in the courtroom via television?" We're still studying what the effects are.

Q: How important is judicial enforcement to judicial independence?

Judge Hall: Enforcement of judgments is very important and a very different problem worldwide. We have become quite effective in the United States, but it has taken us 200 years to become so. Consider a famous case during the 1830s. It involved a judgment that the U.S. Supreme Court made in favor of the Cherokee Nation, which had been granted some land in perpetuity in the state of Georgia, on which gold was later discovered. President Andrew Jackson declined to enforce the Supreme Court's ruling, saying: "Chief Justice John Marshall has made his decision, now let him enforce it!"

But in 1957, President Dwight D. Eisenhower took a different attitude toward the 1954 Supreme Court decision in Brown v. Board of Education, which ruled that segregated schools were unconstitutional. Eisenhower sent troops to Little Rock, Arkansas, to enforce the Supreme Court decision.

So the willingness of the chief executive to enforce court decisions is very important, particularly in a case of that magnitude where the Supreme Court had, in effect, declared the Southern states' education-segregation laws to be unconstitutional.

Most judgments, it should be said, are much easier to carry out because they are against individuals. We have marshals to enforce our judgments against individuals. Plus, we have the power of contempt. People can be jailed in contempt for failing to abide by a court decision. Any individual, however, can seek a writ of habeas corpus and demand to go before a judge so that it can be determined whether or not he should be held in jail. We have become fairly effective in this country in enforcing decisions, but it is still difficult in many countries. It takes a long time for courts to obtain a smooth enforcement of judgments.

Q: How would you sum up the experience of the judiciary in the United States?

Judge Hall: The judiciary in this country is in the very fortunate position of being both powerful and highly respected. Politicians interfere with the process at their peril. It is very important that no one, no matter how powerful, be able to tell a judge how to decide a case. Unfortunately, in some countries around the world, "telephone justice," in which politicians or other powerful figures try to interfere with judicial decision-making, is all too common. It will take a lot of work, and a lot of courage, to maintain independent judiciaries, particularly in societies where the experience of democracy is relatively recent. But I think, that in the emerging democracies, particularly, people see the benefit and the need for an independent judiciary not only for their own citizens, but also to encourage foreign investment.

Issues of Democracy
USIA Electronic Journals, Vol. 1, No. 18, December 1996