"Now it seems that any judge can take it on himself to overrule a Minister, even though Parliament might approve of the Minister's action. This is to arrogate power to themselves in a manner that makes a mockery of Parliament. ... The judges are giving the impression that they are acting on a political agenda of their own."

"The increasingly strident cries of the well heeled sector of the community, pressuring Government and the judiciary as to the particular brand of justice they seek, are not a pretty sight either, nor are the supportive noises made by acolytes in the profession."

"It was never contemplated that the individual who has to protect our individual rights would have to consider what decision would produce the most votes."

"Unfortunately, he was not defending the independence of the judiciary. After Baer reversed his ruling, Hatch told reporters 'Unfortunately this sort of attention cannot be brought to bear on all of the other soft-on-crime decisions issued by other activists that President Clinton has appointed'".

"Similarly, those in the Democratic Party should have taken President Clinton - a former constitutional law professor - to task for the suggestion that he might call for Baer's resignation because he disagreed with Baer's decision".

"Judges can take criticism, I am very confident, but whether the public interest can stand and absorb mal-informed, drum-beaten and heated attacks on the judicial process is worth pause and reflection."

1. Always some criticism: It is wrong to think that criticism of the judiciary is completely new. In the United States, under the protection of the First Amendment, the media and politicians commonly said nasty things about particular judges. For example, when Hugo Black was nominated by President F D Roosevelt to the Supreme Court, the Chicago Tribune declared that "If he wanted the worst man he could find, he has him". In News Week, a commentator was quoted as saying: "There have been worse appointments to high judicial office; but, with Rodgers and Hart, I can't remember where or when". The Washington Post said that the nomination combined "lack of training on the one hand and extreme partisanship". Black went on to distinguished service on the Court. It is a little ironic (but not perhaps entirely surprising) that it was he who said in Chambers v Florida that courts serve:

In England, a memorandum from the Permanent Secretary to the Lord Chancellor’s Department, recently disclosed, asserted:

This was not written during the current debates. It was penned in March 1929 to the first Lord Hailsham who was Lord Chancellor in Stanley Baldwin's first administration. However, in the England of that time the opinion was privately expressed and kept so for decades.

In Australia, as in Britain, the law of contempt, in the form of "scandalising the court", imposed a measure of restraint on attacks on judges, particularly where it was considered that the statement was an attempt to influence specific court proceedings. However, from the outset, this power was used cautiously in Australia . It has faded in most developed common law countries during the course of this century in harmony with expanded notions of free speech. One liberal High Court judge in Australia, Justice Lionel Murphy, suggested fifteen years ago that there was actually insufficient, and not excessive, attention to the courts and their importance to the government of the country. Going back to the good old days when politicians, the media and others would show respectful obeisance to the judges, confining their criticisms to private mutterings is now an impossibility. In any case, when explored, those old days included some political and personal attacks, admittedly rather more muted than of recent times.

2. Inevitability: In a free society some criticism of the judiciary is inevitable. This is especially so at a time when there is a growing appreciation of the inescapable choices which fall to judges (particularly in the highest courts). It is naive to expect that commentators will be silent about such choices. Just as decisions of the other branches of government attract criticism and occasional calumny, important and controversial decisions of the courts will inevitably do the same. Into this milieu has been injected the technology of the modern media of communications. In his lecture on this subject, the Chief Justice of New South Wales reflected on the politics of law and order:

The same phenomena impose unrealistic expectations on police. It is an inescapable feature of the information world we are living in. The media encourage conflict, dramatic visual images, demands for instant solutions. Uncomfortably for the judiciary, they are locked into a profession whose mission is to serve the ages, not the instant sound-bite or spin considered appropriate to most of the actors in the other branches of government and most of the contemporary media.

3. Some good: Some of the heightened attention to the courts and their doings is justifiable; some desirable. The principle of public justice and open courts is designed constantly to submit the judges themselves to public scrutiny. Incompetent, dilatory, ill-tempered, prejudiced judges may deserve to be exposed so long as the object is truth not just entertainment at the behest of a disgruntled litigant whose views are given currency at the expense of a judge who cannot effectively answer back. A lot of criticism of courts and of the legal profession itself is perfectly healthy. Judges are citizens too. They live in their communities. It is right that they should be alert to community feelings. It would be naive to declare that they are completely unaffected in their professional decisions by the public debates which swirl around them. But what is expected is that, when the crunch comes and a serious attack is made on vulnerable people, the courts will uphold the law and the Constitution. The High Court of Australia did exactly this in 1951. In the midst of the Korean War, the Red scare and an enormous public fear of communists and communism, the Court struck down as unconstitutional the Communist Party Dissolution Act. That Act had been enacted by the Australian Parliament, proposed by a government which had a specific electoral mandate to do so. A referendum to authorise amendment of the Constitution to overcome the decision was defeated. Although the Court was criticised by some at the time, the politicians faithfully accepted the decision. There was none of the ferocity of comment that has lately been voiced against the Court. It would not have occurred and any criticism would have been of the decision or the reasoning, not of the judges personally.

It is because courts are obliged to protect the rights of unpopular individuals and minorities that they are exposed, in elected democracies, to political castigation. If judges are to perform their functions when the going gets rough, they need tenure to underwrite their independence. Personal courage may not always be enough. Even with tenure, ambition or thirst for popularity may sometimes get in the way. Judges may sometimes wilt under the barrage of criticism, as Judge Baer appeared to do.

4. Some too far: Having acknowledged the legitimacy of public debate about cases and issues, criticism of decisions and attention to judges who are lazy, slow, incompetent or rude, it remains to be said that the current level of political and personal attacks on the judiciary is unacceptable. It has gone too far. Unless there is a measure of mutual restraint, the judicial institution will be damaged and judicial integrity undermined. When judges reverse their decisions in the wake of political or media criticism, the judiciary as an institution is presented as unacceptably supine. When judges are exposed to removal from office at the behest of politicians who dislike their decisions, they are highly vulnerable to the improper pressure that diminishes their real neutrality. When judges are submitted to unrelenting political attacks by people who should know better, there is a danger that the public will draw from the silence of the judges an implication that the criticism was justified. Yet silence is ordinarily imposed by judicial convention. Generally, judges cannot answer back. At least most cannot do so in effective forums. From inexperience their attempts to respond sometimes result in compounding their problems and demeaning their office.

In Australia, where neither federal nor State judges are subject to election, recall or popular removal, new developments have been occurring which are a source of added concern. State courts and State and federal tribunals have been abolished and targeted members not reappointed to the successor body. Independent office-holders who criticise governments may find that their statutory powers are diminished. In the wake of the recent controversies in Australia, proposals have been made, for the first time, that judges should be appointed for a term of years or chosen with participation of the people. The retirement from the High Court of Australia of two of the seven Justices and the pending retirement of the Chief Justice on attaining the constitutional retiring age of 70 years, led to a declaration by the Deputy Prime Minister of Australia, that the Government would appoint "capital C conservatives" to replace the retirees. Governments in Australia are not subject to Senate confirmation hearings for their judicial appointments. They can appoint whom they choose. They have always been entitled to make judicial appointments with reference to what they hope may be the appointee's philosophical inclinations. But in Australia we have not, until now, had such a clear indication that ideological leaning, rather than professional reputation or intellectual merit, will be the chief criterion for appointment to judicial office. Needless to say the comment drew much criticism. The Federal Attorney-General, by an unprecedented procedure of consultation, has tried to repair the impression that the political inclinations of candidates rather than their ability and independence will be the chief criterion for appointment to the nation's highest court.

5. Some bad: Distinctly bad have been the following features of the recent attacks on the judiciary. The personal targeting of identified judges. The attempt to intimidate them or to deflect them from fidelity to their oath of office to decide each case strictly on its merits. The unrelenting character and partisan political aspect of the attacks of the last decade. Little wonder, that some good judges prefer to resign. Small surprise that good people of independent mind now refuse judicial appointment. Once proud and famous courts are criticised for buckling under to political pressure. Another feature of the barrage which should not pass unnoticed is the way in which women judges have tended to be singled out for special attack, whether in the United States, New Zealand or in my own country. Targeting judges, identifiable because of their sex, race or other minority considerations, attacking them by over-simplified and often inaccurate generalisations, panders to public prejudice. It reinforces stereotypes about the judiciary. Such conduct is unworthy of countries that claim to uphold fundamental rights and the rule of law.

1. Unacceptable responses: In the face of the barrage, and under fire, there are a few strategies available to the judiciary. It is worth listing them. Some of them can be put out of account as unworthy or impossible of attainment. Unworthy would be a judicial response to just cave in to the pressure and to do exactly what the politicians, editorialists or other powerful interests want. This would be a complete abdication of the judicial function. It would be out of line with constitutional and legal requirements and with our traditions. Although other judicial models exist, those countries, like Australia and the United States, which have chosen the path of a strict separation of the judicial power assert that the judiciary, and not the legislature, is the ultimate arbiter on political power. For judges of this tradition, caving in is out of the question.

So is ignoring the barrage in the hope that it will diminish or go away. There are limits to what the judiciary itself can do to respond to its critics. Within those limits, judges should certainly try to correct misapprehensions and insist upon the truth. Collectively and individually they have an ultimate duty to protect the integrity and independence of the judicial institution. Because they spend their days hearing both sides of conflict and searching for the rational resolution of difficult problems, judges and other lawyers tend to feel specially uncomfortable in simply putting up with false criticism and mis-information. Yet putting one's head above the ramparts can be risky. An interesting article on law review publications by judges of the United States Court of Appeals compares the pattern before and after the Senate confirmation hearings concerning Judge Robert Bork's nomination to the Supreme Court of the United States. The analysis concludes that publishing by such judges declined significantly following the Bork hearings. Judges with established reputations, particularly, appear to have observed and learned. This may not necessarily be a desirable result. Is it better to appoint a silent and unproductive nominee whose value system is completely unknown rather than one who has contributed to intellectual debate, exposed his or her ideas and demonstrated courage in sharing jurisprudential opinions with the legal profession and beyond? Driving candidates for judicial preferment into complete silence may simply promise more uncomfortable surprises when the Pandora's box of judicial appointment or promotion is reached along a silent road.

2. Court defences: One solution, increasingly used in Australia and New Zealand, is the recruitment of media and public affairs officers to the service of the courts. They can help journalists, often working to strict deadlines, to report accurately important court decisions and to correct factual or legal mistakes where they occur. They can promote more accurate media commentary about the law and its personnel. In short, they can become informed. There are dangers in playing the media's game. Its mission will never be the same as that of the judges. Courts have no business cultivating political or public favour. They would always lose in a competition with the political branches which inevitably enjoy greater experience and resources. Courts would be diminished if they felt obliged to defend their decisions beyond their published reasons by employing media "spin doctors" for that purpose. But it must be admitted that those reasons are often obscure and highly technical. Perhaps, by failing to provide user friendly and public friendly summaries and by insufficient attention to the necessities of communications in the age of informatics, judges have brought on themselves some of the confusion which they criticise so readily in others.

3. CJ's response: It seems now to be an accepted obligation of Chief Justices and other senior judges to respond, on behalf of their courts, to attack on the courts, their judgments, their personnel or the administration of justice itself. Chief Justice Rehnquist did so during the last United States presidential campaign. Justice Stevens did so at the American Bar Association meeting in August, 1996. Such statements may quieten the barrage for a time. Chief Justice Brennan has done so in Australia, joined from time to time by Sir Anthony Mason, his distinguished predecessor. But judges are generally too busy. They usually lack the skills to mix it with political or other critics. They typically share a concern that an endeavour to do so would diminish them and their office. This concern is not misplaced. Reticence in public debate and controversy is what citizens generally expect of their judges.

4. The Bar: It therefore rests increasingly on the organised legal professional to defend the judiciary, to correct blatant misinformation and to remind politicians, the media and others of the precious heritage of judicial neutrality and independence which we have enjoyed until now. For the United Nations, I have worked in a number of countries where independence and incorruptibility are not ordinary features of the judiciary. It is important that institutional protection for those features should be maintained. Political attempts to undermine them should be rebuffed. Where necessary, the Bar should move for the disqualification or non-appointment of persons with committed positions on issues likely to come before the courts. Leaders of the legal profession, whatever their own general political persuasion, should speak up where judges are unfairly criticised by politicians and others for doing their independent duty. The Attorney-General, as the traditional leader of the legal profession, should do so in appropriate cases. In Australia, at least in part, the Federal Attorney-General has lately evidenced a willingness to return to this traditional role and even to criticise his Ministerial colleagues in the process. In the United States, somewhat belatedly, Attorney-General Janet Reno expressed her concern at "the increasingly heated rhetoric surrounding the debate" about so-called judicial activism. Attorney-General Reno acknowledged that judges today "must have thick skins". She condemned the way recent debates had not sought to argue "the rightness of an issue but to undermine the very credibility of the judiciary". The temperature of the debate elicited "alarm" on her part. The word is not too strong. She noted delays by the Senate in considering the large number of judicial nominations awaiting confirmation. Those delays appear to have become caught up in partisan political issues. So perhaps has the related question of maintaining judicial remuneration.

5. Political mutual respect: Statements of this kind from a leading political figure such as the Attorney-General are to be welcomed. But generalities given voice months after an attack are no substitute for specific defence of particular judges when they are under political or personal attack for performing no more than their judicial duties. It is then that strong political leadership of a principled kind is required. The increasingly adversarial and combative nature of our societies should not become endemic to the damage of the relationship of the judiciary with the other branches of government. Legislators, members of the Executive Government and the judiciary should all realise that each branch has its own part to play, without which constitutional government would be impossible. But what the political branches of government have to understand (as formerly, I believe, their members generally did) is that it would be an abdication of their constitutional functions for judges to court popular opinion for preconceived views applicable to cases in the courts or to swing abjectly in the wind of the latest popular mood. It was out of recognition of that danger that, when the people of England banished King James II from the Kingdom in 1688, they only invited his successors, William and Mary, to take up the Crown upon conditions. One of the conditions was judicial tenure and independence. When this principle, accepted for Britain, was not extended equally to the English colonies, the colonists and settlers complained and, in America, rose in revolution. They instituted, at least in the federal judiciary of the United States, a firm guarantee of tenure and independence for the judiciary. We in Australia are the happy beneficiaries of these two revolutions of 1688 and 1776. But it is necessary for judges and lawyers to remind their fellow citizens of the causes of those revolutions, the importance of maintaining the principles which were thereby secured and the dangers involved in expecting judges to decide cases on whether their decisions will be popular or not.

6. Education in civics: Sadly, papers such as this and occasional judicial speeches at law conferences will not repair the mischief that years of concerted attack on the judicial institution and individual judges can cause. Such attack often portrays a fundamental lack of understanding of what judges do, what they do not do and even why they exist in our kind of society. Such basic misapprehensons may not be curable in mature adults. The remedy should start in the schools and through the media. It should not be confined to law faculties and learned institutes. A renewal in the teaching of civics for all citizens would be timely. Let it be a goal of the coming millennium that we re-teach the lessons of our constitutions and engender an informed appreciation of the judges and of their vital importance for the peaceful government of us all. Not blind or uncritical faith. Not confidence extracted by the ever present threat of legal enforcement. Not appreciation won by clever public relations and media hype. But a deserved evaluation of faithful and honest service in a difficult profession, the alternative to which is anarchy and the power of guns.