Professor Ekaterina Mishina examines the strengths of the American judicial branch, focusing on judges. Detailing the requisite professional and moral qualities of U. S. judges, Mishina points out what Russia can learn from them if it wishes to raise the prestige of the profession.
In this photo taken Oct. 8, 2012, the justices of the U.S. Supreme Court gather for a group portrait at the Supreme Court Building in Washington. Standing, from left are: Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer, Associate Justice Samuel Alito Jr., and Associate Justice Elena Kagan.
The low prestige of the judicial profession in Russia is one of its key problems. This phenomenon has a history: judges were not particularly respected in Tsarist Russia; under Soviet rule, nothing was done to improve their status. As increased public trust in judges and higher prestige are both priorities of Russian judicial reform, Russia would do well to look at examples of countries where judges enjoy a high status. A good example is the US.
In attempts to discover the root of the American judiciary’s strength, six years ago, I conducted interviews with a number of judges from courts of various levels. Judges were all asked the same set of questions, including this fundamental one: what makes the American judiciary so powerful?
Many of the judges offered that this may be due to the fact that the American judicial system was based on English common law, where judges enjoy a great deal of respect. Here is how judges are described in Article 45 of Magna Carta (1215): “We will not make men justices, constables, sheriffs, or bailiffs unless they are such as know the law of the realm, and are minded to observe it rightly.” It was considered a great honor to be a judge in medieval England, and this tradition contributed to how judges were treated in the colonies.
Another reason for the respect that judges are bestowed in common law countries arises from the fact that, unlike in civil law countries, in accordance with common law tradition, judges make law. This happens when a judge applies legal norms while handling a particular case. The stare decisis doctrine and the concept of inherent power are also considered to play important roles.
The U.S. Constitution outlines the judiciary’s powers. Section 1 of Article III of the Constitution envisages that “the judicial Power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” The famous “during good Behavior” clause is a basic condition guaranteeing that judges’ salaries do not decrease while they are in office. This pragmatic term bolsters the judges’ independence and serves to protect them against the political whims of Congress and the President. “During good Behavior” can refer to a lifetime in office.
Federal judges of all levels are appointed by the President with the approval of the U.S. Senate and may be removed from the office only by impeachment on the grounds of committing a felony or a serious breach of judicial ethics. The Founding Fathers understood that despite the fact that in the system of the separation of powers the judiciary, as Montesquieu had put it, is somewhat invisible, without a strong and independent judiciary, the system cannot operate.
Another contributing factor that was mentioned by surveyed judges was the possibility of a charismatic leader at the head of the judiciary. A charismatic leader can safeguard the efficient cooperation of the judiciary with other branches of federal power over the course of many years. All the judges spoke to the incredibly important role played by John Marshall, who raised the prestige of the American judiciary. Marshall was instrumental in shaping American constitutional law and asserting the judiciary as a powerful authority.
John Marshall (September 24, 1755 – July 6, 1835) was the longest-serving Chief Justice of the United States (1801–1835) whose court opinions helped lay the basis for American constitutional law and made the Supreme Court of the United States a coequal branch of government along with the legislative and executive branches.
A number of other factors contribute to the judges’ status. Foremost among them is a general desire to stay away from other aspects of politics and the trust accorded to the judiciary by the public.
What makes judgeship the top legal career in the U.S? Here are a handful of perspectives on this matter:
The self-respect of judges is a salient feature of American legal culture. Prominent lawyers often run for judge although they could make a fortune in the private sector. Many judges emphasized that they derive a great deal of moral satisfaction from the administration of justice, which is a more valuable motivation than money.
Another strong motivation for judges is the potential to do socially significant work. Being a judge could mean providing a very important service to your country. One way this can be done is by using one's knowledge and experience to, as one of the judges interviewed put it, “improve the system.”
Finally, there is prestige. The position of judge became prestigious when highly qualified lawyers began to pursue it.
American judges are remarkably autonomous, their decisions guided only by the Constitution and the law, never by orders from court chairpersons. Overall, they do not consider themselves under the auspices of the court chairpersons or upper court officials. In addition, court chairpersons in America don't possess as broad or influential powers as their Russian counterparts. For example, they aren’t responsible for case assignment and therefore cannot use it as leverage.
Judgeships (especially those of the federal judges) are also attractive because of the job stability. Federal judges are irremovable and enjoy a lifetime continuance in office. Illness or incapacity to make decisions do not constitute grounds for removal, and in this sense, judges are a lot more secure in their positions than the President.
While answering my questions, the judges made the point that not every highly qualified lawyer makes a good judge. They emphasized the necessity of considerable life experience. A prospective judge must feel mature and prepared for his or her important mission. Young candidates for judgeships may be afraid of being under-qualified or worry that they will be underestimated by their older colleagues.
Legal professionals typically have narrow specializations. Judges, on the other hand, must be capable of considering issues related to a wide range of legal realms. In preparation for becoming a judge, a specialist must transform into a generalist, a process that calls for special training. The most important thing for a prospective judge is to stop thinking like a lawyer and start thinking like a judge. Whereas prosecutors, attorneys, in-house lawyers and other such professions are tasked with concrete, practical problems, judges seek the truth of a situation in order to facilitate the triumph of justice.
Swearing ceremony of Judge Reyna who fills the eleventh of the twelve seats on the Federal Circuit
In other words, judges must possess the so-called judicial mentality, which entails the following:
• courage
• the ability to keep personal emotions outside of their consideration.
• respect for people
• the capacity to treat all cases as equals readiness to explain their actions. People must understand the motivations of a judge, as this is one of the constituent elements of the public trust in judiciary.
The judicial mentality also entails a love for the law, patience, fairness, determination, the ability to listen to people, the ability to articulate one’s ideas, the capacity to handle difficult and complicated cases, and to use all of their experience for the purpose of a single goal: to make a fair judgment. Judges must also strive to be impartial, aware of the limitations imposed on them, and to understand the people who seek their help. Above all else, judges must avoid arrogance, which would render them professionally unfit. As one of the judges put it, arrogance is a behavioral pattern that, sooner or later, will get a judge in trouble.
All of these qualities can make a good judge. But there is one more crucial factor: a judge must both be independent and feel independent.
I am not trying to idealize American judges, but Russia truly does have a lot to learn from them.
Here are some characteristics of American judges that I would like to see in their Russian colleagues:
• judges are the acknowledged law-makers and feel as those who make law;
• judges enjoy a considerable level of autonomy, including independence from court chairpersons;
• judges respect themselves and are not motivated financially;
• judges have a lot of job security;
• the universal acknowledgement that a good judge must combine professionalism, considerable life experience, and a judicial mentality.
The most important quality on this list is independence. A brilliant lawyer who lacks decisional independence will never make a good judge. A judge like that would never be anything but a governmental official who is altogether dependent on executive power.
