Judiciaries Under the Microscope: Independence v. Encroachment
Towards the end of the internship program at NCSC, summer interns are asked to develop a presentation on an emerging rule of law topic of their choice. Given the recent news reports regarding inadequate financial disclosures within the Supreme Court, the other legal intern and I decided to develop our project around the theme of judicial accountability- or lack thereof. We also wanted to find a way to incorporate some information on judiciaries in other countries where NCSC has offices. I sit in on the weekly field office meetings with the NCSC team in Moldova and they have mentioned that Moldova has been engaged in efforts to address corruption in the justice sector and in the judicial branch, so it seemed fitting that an analysis of the Moldovan judiciary would be included in a presentation on judicial accountability. The other legal intern frequently receives assignments from the Tunisia team, and has been tracking the democratic backsliding in the nation as the President uses his popularity to attack the independence of the other branches of government, including the judiciary. Therefore, we also decided to incorporate information on the judiciary in Tunisia into our presentation. Ultimately- we titled our presentation “Judiciaries Under the Microscope: Independence v. Encroachment- A Comparative Analysis of the U.S., Moldova, and Tunisia.
Article III of the US Constitution establishes life tenure for federal judges, and Article II clarifies that they may only be removed via impeachment. The difficulty of removing federal judges insulates them from the political process- giving them a great deal of independence. However, there are still accountability measures in place for the federal judiciary. Federal judges must abide by a Judicial Code of Ethics, and there are existing procedures for the discipline of federal judges who fail to do so. These procedures are developed and governed by the Judicial Conference- a policymaking body made up of the Chief Justice of the US Supreme Court and other lower court judges. However, it’s important to note that the US Supreme Court Justices are not held to this code of ethics, and they are not subject to discipline by the Judicial Conference. While they are held to some federal legislation requiring disclosure of outside income ( including rents, interest, and capital gains over $200; certain gifts and reimbursements; interests in property; liabilities over $10,000 owed; real property/securities over $1,000; positions in outside entities; other employment; qualified blind trusts), the Supreme Court is largely left to govern itself. Recently, it has been discovered that a few Supreme Court justices may have failed to disclose important business transactions or gifts. Justice Thomas has received most of this criticism after ProPublica reported that he accepted millions of dollars of luxury vacations from conservative mega donor and real-estate developer Harlan Crow. Chair of the Senate Judiciary Committee, Senator Dick Durbin, invited Chief Justice Roberts to testify before the panel in regards to these recent reports of inadequate financial disclosures, but Justice Roberts denied the invitation. In response, the Senate Judiciary Committee voted (11-10 along party lines) to advance the Supreme Court Ethics, Recusal, and Transparency Act, aimed at imposing stronger ethics standards on the Supreme Court. While this bill is unlikely to pass, its introduction indicates that Supreme Court reform may become an important political topic in the near future.
While the court system in Moldova looks quite different than the court system in the US, the Moldovan Constitution does establish an independent judiciary- and judges are designed to be irremovable (outside of a select few impeachable offenses). Moldova applied to join the EU in March of 2022, and in response, the European Commission identified nine reforms it wants Moldova to make. Six of those were focused on fighting corruption in the justice sector. To work towards meeting those reform objectives, Moldova implemented a pre-vetting process for members of the Superior Council of Magistrates and the Superior Council of Prosecutors- the judicial governance body responsible for recommending individuals for judgeship and prosecutor positions, the transfer of judges and prosecutors, and the discipline of judges and prosecutors. The pre-vetting of Superior Council members was designed to be a “first step” towards addressing corruption in Moldova. Between 2022-2023, the Ministry of Justice has proposed two laws that would establish vetting procedures for sitting judges and prosecutors, including the Supreme Court of Justice- the highest court of law in Moldova. These measures towards enhanced judicial accountability will likely continue to advance in coming years.
Like the US and Moldovan Constitutions, the 2014 Tunisian Constitution stressed the importance of an independent judiciary. It also established a Supreme Judicial Council, which could be compared to the Superior Council of Magistrates in Moldova. The Supreme Judicial Council is an independent body designed to oversee the judiciary- handling the appointments, promotion, transfer, and discipline of judges. However, in 2022, the President of Tunisia dissolved the Supreme Judicial Council and installed a new provisional one. He also granted himself the power to intervene in the appointment and dismissal of judges. The future of the independent judiciary in Tunisia is unclear, as the President continues to erode the balance of power among the branches of government in the country.
Judicial independence, accountability, and transparency are vital for a functioning judicial sector- but my research for this presentation made it clear that these characteristics are difficult to balance. In the US, we have a “developed” democracy, with a fully independent judicial branch and established processes for appointment, vetting, and discipline of the federal judiciary, but issues still exist in regards to adequate disclosures, and ethics requirements in the Supreme Court. Moldova represents a “developing democracy” with judicial accountability measures actively being established and developed, but many judges are pushing back against these efforts, claiming they are an attack on judicial independence. Lastly, Tunisia representing a “backsliding democracy”, with judicial independence and accountability measures actively receding. Preparing for this presentation left me with a great deal to think about in regards to the potential for judicial accountability reform within my own country, but also a greater an understanding of the difficulty associated with the balance of judicial independence and accountability in Moldova and Tunisia.