By Lisa Pang C'13
A crowd of law students gathered in Penn Law’s Bernard Segal Moot Court Room on March 31 to hear Iowa Supreme Court Justice Brent Appel discuss the process, historical precedents, and current challenges faced in maintaining fair and impartial courts in American society.
Justice Appel was appointed Iowa's First Assistant Attorney General in 1979, Deputy Attorney General in 1983, and Supreme Court Justice in 2006. He served on the court responsible for the controversial decision to legalize gay marriage in Iowa. “Those who are opposed to fair and impartial courts are more vocal, those who support them have been largely silenced,” he told the audience.
Appel explained that the theory of fair and impartial courts held a strong historical precedent in the United States: “Most colonial judges held their judges at the pleasure of the crowd and the king,” Appel said. But around the time of the Constitutional Convention, attitudes towards judges changed: “The Founders rejected politically irresponsible judges,” he noted, adding, “The powers of government can be limited through no other way than through medium of courts of justice…Without this all reservations of particular rights and privileges will amount to nothing.”
At the same time, several movements were made towards checking the freedom of justices, especially during the impeachment of Samuel Chase, an associate justice of the U.S. Supreme Court in 1796, Appel said. However, in Chase's case it was determined that he could not be impeached on the basis of his opinions on the bench--a decision that has been used as a historical precedent to preserve the court’s decision making independence.
Appel also addressed how the system of appointing justices influenced the court’s autonomy. For example, until 1962 Iowa elected its judges, which according to Appel led to independent and fair-minded judges sitting on the bench. As a result of calamities like the Great Depression, however, “All the Republican judges were swept out of office,” he said.
To avoid such situations, Iowa adopted the merit selection system, in which a committee comprised of lawyers and judges reviews applications and nominates three candidates for a retention vote. Appel voiced his support of the system: “I think the manner of selection in Iowa which involves a larger committee decision and nomination has considerable merit,” he said.
Appel further highlighted judicial independence “as a lynchpin of citizens’ rights,” pointing out that “The Soviet Union had no fair and impartial court. In Nazi Germany, previously independent judges were required to take a new set of oaths.” He described attacks today on the judiciary as “currently pretty strong. We are said to be arrogant and elite,” Appel asserted, “not responding to the popular will… legislating from the bench.”
These attacks are not at all new, he said, “So it’s déjà vu all over again.” But, he noted, there are factors present in society now that are more challenging to fair and independent lawyers. “Society disparages critical thinking and encourages emotional response… impartiality is a sign of weakness,” Appel said.
Appel decried the use of “labels as a substitute for analysis,” arguing that in order to counteract such a mentality, it is vital to educate the public about judges' and justices' work within precedent and statutes instead of within their own personal precedent.
In addition, Appel decried what he termed “the chronic underfunding of the judiciary.” The judiciary, he asserted, is overwhelmed in terms of time and resources, and making responsible decisions under such conditions is a challenge. Underfunding “is a silent killer for fair and impartial courts,” he warned.
Appel closed by emphasizing the importance of lawyers. “You have chosen an honorable profession,” he told his audience. “Diligence makes a difference. When I talk to graduating students, I always say ‘some of you may have had great grades….when you get to the court room, none of that matters, what matters is who’s prepared and who's diligent and who is willing to zealously represent the client.'”
The event was organized by Penn Law's chapter of the American Constitution Society, the mission of which is “to promote progressive interpretations of the Constitution and the judiciary,” explained Anna Carlsen L’12, the Penn Law membership chair. “We hold events like this to bring in progressive judges to learn about the issues, ways to disseminate knowledge, and how we can work for change.”