Beruflich Dokumente
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Mechanisms of Accountability
Fundamental to an Independent
Judiciary
ROBERT J. CORDY
Partner, McDermott, Will & Emery; Associate Justice of the Massachusetts Supreme Judicial
Court (retired).
1 Thurgood Marshall, The Sword and the Robe (1981), available at https://perma.cc/49SR-
A599.
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but rather to educate and improve the quality of justice and its delivery as
dispensed by every judge in the system. In Massachusetts, for example,
there are a number of resources available to judges who need assistance,
including continuing legal education and training programs and a judicial
mentoring program.
Fourth, a commitment to the principle of transparency in court
processes, judicial decision-making, and judicial reasoning. This is a topic
worthy of elaboration. Historically in the United States, we have tried
mightily (if not always successfully) to ensure public access to court
proceedings and court records. This reflects a judgment made more than
200 years ago that comes from balancing the public’s interest in judicial
accountability against the privacy interests of litigants. The reason for our
striking the balance in favor of public access is perhaps best articulated by
Oliver Wendell Holmes, who explained in a judicial decision he wrote 123
years ago, when he was a Justice of the Massachusetts Supreme Judicial
Court, as follows:
[I]t is desirable that judicial proceedings should take place under
the public eye . . . because it is of the highest moment that those
who administer justice shall always act under the sense of public
responsibility, and that every citizen should be able to satisfy
himself with his own eyes as to the mode in which this public
duty is performed.2
This principle of transparency has assured public access to all but a few
types of court proceedings (generally excluding juvenile proceedings); and
a similar right to access most civil and criminal court filings and all judicial
decisions. The principle has been protected by a vigilant press, which often
acts as the eyes of the public, reporting on the diligence of judges, the
substance of their decisions, and on the efficiencies or inefficiencies of the
judicial process. A well-informed American press, while occasionally
critical of judicial decisions, has consistently played a vital role in
prompting significant improvements in court operations, and in enhancing
public understanding and respect for what courts do and their critical role
in a constitutional democracy. The press could and should be an ally in this
endeavor.
Transparency and accountability in court proceedings have been
further promoted through the use of technology in courtrooms. For
example, in every courtroom in Massachusetts all of the proceedings,
including the interactions between the judge, lawyers and the parties, as
well as the oral rulings of the judge, are fully and digitally recorded and
become an important part of the record of the case for appellate and
precedential purposes. I cannot overstate the value of recordings that
capture what actually was said and occurred during the proceedings. With
the latest technology, lawyers can literally leave the courtroom and have a
copy of the digital record. The press as well can obtain such a record
promptly on request, as can the disciplinary authorities that govern the
professional conduct of judges and attorneys when their courtroom
conduct is questioned, and there can be little dispute about what has
occurred. The existence of these recordings has raised the quality and
civility of court proceedings generally, and has created an accessible means
of accountability throughout the system.
Indeed, the proceedings before the Massachusetts Supreme Judicial
Court are filmed and broadcast live in real time over the court’s website.
Parties, lawyers, law professors, the media and any interested citizen can
either come to the courthouse or watch the lawyers argue their cases, and
the judges asking questions, on their computer screens from wherever they
happen to be. In addition, weeks prior to the hearing, all the briefs filed by
the parties in the cases can be accessed electronically, also through the
court’s website, so interested observers can be well informed about the
important questions that the court will have to decide and the arguments
on both sides.
When I speak of transparency, I am not only speaking of transparency
in courtroom proceedings and filings, but also transparency in the
functioning of the court system itself. In the electronic age, we can gather
and analyze data regarding the satisfaction or dissatisfaction of court users
(not the results so much, but rather the ease of access and how they were
treated), as well as the pace of decision making, by type of case and by
courthouse. We can also create reasonable time standards for the handling
of different types of cases, and regularly measure our performance against
those standards. We should use these measures to improve the
performance of a court system, to advocate for more resources when
necessary, better training and support, and to keep our citizens better
informed about what we are trying to do to improve our service to them. It
is about creating mutual respect.
Finally, transparency also has an important role in promoting public
confidence in the judicial selection process. Although the process by which
judges are chosen in the United States varies from state to state, the
qualifications of judicial candidates are fully examined, and the qualities of
intelligence, integrity, diligence, temperament and professionalism are
highly prized. Once a lawyer has been nominated to a seat on the federal
judiciary, he or she undergoes extensive scrutiny in public confirmation
proceedings. In Massachusetts, the governor appoints judges for terms
expiring at age 70. Each appointment is made by the governor from a list
of 3 or 4 candidates, all of whom have practiced law for at least 15 years,
and who have undergone a comprehensive background review and are
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comes from the Magna Carta – and if judges can do no more than just these
two things, they will have largely fulfilled their institutional
responsibilities.