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The Least Understood Branch Initiative

Tuesday, July 31, 2012

Published in The Judges' Journal, Volume 51, Number 3, Summer 2012. © 2012 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

The Least Understood Branch initiative began in 2005, inspired by a 1999 speech from Mario Cuomo entitled “We Must Lead the Charge”1 at a program sponsored by the American Bar Association, the National Center for State Courts, and the League of Women Voters.2 Former Governor Cuomo commented on the growing criticism and apathy toward our justice system and its vulnerability to political interference.

Our 200 year old legacy of law and justice is a magnificent monument to the best we have been able to accomplish as a people. We must not allow it to be torn down nor even defaced by a political system whose claim to morality is the latest urge of the American people, however distracted, however misled we may be.3

Cuomo urged the development of the themes and messages that would lift the justice system “above the political melee and confusion” and recommended that “we . . . get experts to teach us exactly how to say it, to design clever phrases and memorable metaphors. . . . The burden of persuasion rests with us, the people in this room today, and the people like us. We—the judges, the lawyers, the citizen supporters of the justice system—we must lead the charge . . . [to] explain to the public in language they all understand that the judicial system is different from the political branches of our government and that difference makes all the difference to our strength and glory as a democracy. It is the reason we are so great.”4 Due to the unfortunate penchant for acronyms, the initiative soon was referred to as “LUB.”

The goal of LUB, an effort to be sustained for several years, was to create pilot programs designed to provide an effective communications framework for lawyers, judges, and others to use in explaining the courts. The underlying assumptions were that the judiciary (focusing on state courts) had become the “least understood” branch of government, and the bench and bar should provide credible communication about the important role of the judiciary in protecting and enforcing individual rights and in providing equal justice for all.

Three phases were anticipated for the initiative: first, a diagnosis of the causes for dissatisfaction with the judicial and justice systems in various communities and areas of the country; second, development of research-based themes and messages that recognize the causes of dissatisfaction while supporting confidence and understanding of the role of the judiciary; and third, development of methods for the effective delivery of those themes and messages to the several audiences, premised upon the Cuomo approach that “we must lead the charge.” There was considerable information about the extent of the challenge. “Justice in Jeopardy,” the 2003 Report of the ABA Commission on Justice in the 21st Century Judiciary, had emphasized the importance of an independent judiciary to people of color and the poor while recognizing reports that other segments of American society also had a serious lack of confidence in the fairness and impartiality of the judicial system.

Robert Tobin of the National Center for State Courts, in his invaluable treatise Creating the Judicial Branch: The Unfinished Reform, had recently observed:

Public dissatisfaction with courts and the legal system is so high that in 1998 every major court organization and the ABA made building public trust and confidence a priority issue. . . . The public is concerned about the integrity of the judicial process itself—its lack of accountability, poor methods of judicial selection and discipline, political intrusion, and the ability of attorneys to manipulate the court system. The public is also concerned about the barriers that decrease public access to courts and the justice system. . . .5

Deborah Hensler of the RAND Corporation recognized:

Judicial independence is under attack [and has been under attack since the founding of our country]. Unpopular judicial decisions meet with cries for resignation or impeachment. Legislative decisions limit judicial discretion.6

LUB was aided by research then being compiled by the Justice at Stake Campaign (JAS). Shortly after the national debate over the Terri Schiavo case, where a bipartisan majority of Americans rejected attempts of political interference with our courts, Justice at Stake published Speak to American Values: A Handbook for Winning the Debate for Fair and Impartial Courts. The handbook provided a simple, potentially powerful communication framework for defending “fair and impartial courts” from political interference. As succinctly stated:

Americans are ready to reject political interference with our courts—if we use the right language to make our case:

  • Stick to the core message: In order to protect access to justice for all and our rights under the Constitution, we must defend fair and impartial courts from political interference.

  • Speak to American values: Connect with a bipartisan majority of Americans by talking about the role of the courts in protecting individual rights and ensuring everyone a day in court.

  • Describe the threat: Americans grow concerned when they hear about political interference with the courts, but they need to be educated about those threats.

  • Embrace accountability: People want courts to be accountable—but to the Constitution and the law, not to politicians and special interest groups.

  • Don’t be distracted: Don’t get trapped debating controversial decisions or slogans like “judicial activism.”7

Of particular interest was the finding that the term “judicial independence” had little resonance with the public as compared to terms like “fair and impartial.” This confirmed Tobin’s previous observation:

Paraphrasing Dickens: Judicial independence was the best of terms; it was the worst of terms. To government officials outside the judiciary, particularly those in appropriating bodies, judicial independence may mean lack of accountability by judges and a general license for judicial activists to ignore the separation of powers when the defense of judicial prerogatives is not the issue. . . . To the average person, the term judicial independence smacks of elitism and arrogance.8

The Handbook also included suggestions on drafting “Letters to the Editors” and “Op-Eds” responding to misinformation about the courts.

On controversial decisions, the Handbook advised that questions can be anticipated not only on the “hot button” cultural issues but also on frustration with personal experiences with the judicial system that challenge the concept of fair and impartial courts as well as a variety of other concerns such as two forms of justice—one for the rich, another for the poor—5–4 decisions by judges on political lines, unaffordable lawyers, and so forth.

While the Handbook provided sound advice for presentations, further guidance was needed as to how to respond to “hostile” questions after a presentation to a group such as the Rotary Club and even lawyer groups on the core values of fair and impartial courts and the importance of an independent judiciary.9

Mindful of Cuomo’s suggestion to consult experts to help with the development of themes and messages and “teach us how to present them,” LUB engaged a communications specialist, Margie Elsberg of Elsberg Associates, who had done valuable communications training for the ABA in the past. Elsberg designed two brochures for LUB: Countering the Critics—A Question and Answer Guide and Countering the Critics II: Suggested Responses to Tough Questions.10 These brochures offered advice on presentation as well as how to deal with tough questions. The Standing Committee on Judicial Independence (SCJI) took the lead in preparing a DVD, “Protecting Our Rights, Protecting Our Courts,” intended as a suggested start for any program, describing what courts do, what people should expect of the courts, and what they have the right to expect.

The initial intent of LUB was to train groups within the ABA as well as in state and local bars in making effective presentations to varied audiences as to the importance of fair and impartial courts to the citizenry—basically to develop a “Speakers Bureau.”

Initially, Elsberg conducted a series of training sessions for various ABA groups including the state bar presidents. Doreen Dodson, chair of the SCJI, together with member (and subsequent chair) Bill Weisenberg, led a series of training sessions over the next few years, aided by members of her committee. In addition to training sessions, programs were presented at the ABA meeting with minority bar associations exploring minority attitudes about “fair and impartial courts.” In the three-year period 2007–10, over 30 LUB programs were held.

The LUB training sessions were well received and helped prepare the audience as advocates for the justice system. LUB was recognized in a Columbus Dispatch editorial on April 13, 2008, “Ohio Joins National Effort to Help Americans Understand Justice System.” The editorial noted that the Ohio State Bar Association had adopted LUB and that their training programs so far had involved more than 300 people. “If Ohio’s lawyers and judges can help people understand the justice system, democracy will be well served.”11

In 2010, the Judicial Division, chaired by Judge Mike Witte of Indiana, adopted LUB as a priority program for the Division. In the past two years, Judge Witte and Judge Linda Murnane (Air Force, retired), assisted by several from the Judicial Division, have presented a series of programs at schools and colleges as well as to broader groups on such diverse subjects as “Don’t Ask, Don’t Tell and the Courts” and the lessons to be learned from a juvenile court scandal, “Cash for Kids” in Luzerne County, Pennsylvania.12

Yet, even with the encouragement provided by the public’s response in the Terri Schiavo case, Cuomo’s concern for lifting the justice system above the “political melee and confusion” is more pressing now than then. The overwhelming impact of chronic underfunding of state courts threatens the present and future abilities of many courts to function.

In May 2009, ABA President Tommy Wells convened a summit conference, “Justice Is the Business of Government,” in Charlotte, North Carolina. More than 35 teams of chief justices with representatives of other judiciary branches from their state or territory attended to address funding issues. This conference was promptly followed not only by powerful addresses and articles by recent presidents, but also through the work of the Preservation of Justice Task Force (PoJ) appointed by then ABA President Stephen Zack and chaired by David Boies and Ted Olsen, as well as the Justice Is the Business of Government Task Force (Jbiz), established by the Board of Governors in 2009 and affiliated with the SCJI.

The economic and political impact of the shortfall in funding of our state courts in the past six years has prompted the National Center for State Courts and Justice at Stake to commission an extensive, professionally conducted national poll (anticipated to involve 1,000 persons and professional analysis of the results), probing in detail public attitudes toward our courts and which “messages” as well as “messengers” will favorably impact public attitudes, especially about the need for adequate funding for the courts. The results will be released shortly and discussed at the ABA Annual Meeting in August.

Armed with the results of the newest research, LUB can develop programs for selected states in coordination with the chief justice and court administrator, as well as the state bar association, to further the understanding and support of the citizens as to the value of their courts, with special emphasis on the vital needs for adequate funding to ensure equal access to a fair and impartial justice system.

Conclusion

Cuomo’s eloquence and concern, which inspired the ABA’s Least Understood Branch initiative, was well founded. In the intervening years Cuomo’s challenge to lift the justice system “above the political melee and confusion” is more timely than ever. It is still true, as he noted, that “the burden of persuasion . . . [is on] the judges, the lawyers, the citizen supporters of the justice system—we must lead the charge. . . .”13 The Least Understood Branch initiative can be a part of that charge.

Endnotes

1. Mario Cuomo, We Must Lead the Charge, 6 Court Rev. 14 (Fall 1999).

2. Created jointly by the ABA’s Judicial Division and the Standing Committee on Judicial Independence with participation of the National Center for State Courts (NCSC), Justice at Stake, and the U.S. League of Women Voters (LWV).

3. Cuomo, supra note 1, at 19.

4. Id.

5. Robert W. Tobin, Nat’l Ctr. for State Courts, Creating the Judicial Branch: The Unfinished Reform (1999).

6. Deborah Hensler, Judicial Independence and Accountability Symposium, 72 S. Cal. L. Rev. 707 (1998).

7. Justice at Stake Campaign, Speak to American Values: A Handbook for Winning the Debate for Fair and Impartial Courts 1 (2006).

8. Tobin, supra note 5.

9. The LUB founders had a report of a Pennsylvania trial judge addressing his county’s Inn of Court on the importance of judicial independence from political or special interest interference. Rather than the anticipated “standing ovation,” he was met with comments and complaints about how local judges favored prosecutors, publicly apologized for granting suppression motions, and were arrogant to counsel, parties, and witnesses. He was “blind-sided” by these comments and not prepared to respond.

10. These are available online at http://www.americanbar.org/groups/justice_center/judicial_independence/resources/resource_kit_on_fair_impartial_courts_lub.html.

11. Editorial, Branching Out: Ohio Joins National Effort to Help Americans Understand Judicial System, Columbus Dispatch, Apr. 13, 2008.

12. A list and descriptions of these programs and presentations by both SCJI and the Judicial Division are available online at http://www.americanbar.org/groups/justice_center/judicial_independence/resources/resource_kit_on_fair_impartial%20_courts_lub.html.

13. Cuomo, supra note 1, at 19.

Edward W. Madeira Jr.

Written by

Edward W. Madeira Jr.
Phone: 215.981.4353
Fax: 215.981.4750
madeirae@pepperlaw.com


The material in this publication is based on laws, court decisions, administrative rulings and congressional materials, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.

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