What’s the Judiciary Got to Do With It?

Editor’s Note: This blog is part of an ongoing series of contributions from participants in The German Marshall Fund’s flagship leadership development program, The Marshall Memorial Fellowship (MMF).

Judicial independence, impartiality, and competence dominate post-1990s democratization discussions on progress and backsliding. Judicial transformation plagues countries labeled as leaders as well as laggards. The leaders — well-performing EU member states such as Poland and Hungary — have experienced turmoil in recent years. In the laggards (Romania, the Western Balkans, or my native Macedonia) there is a widely accepted, though painful, realization that the judiciary does not represent a check to the executive. This realization underpins the establishment of special prosecutors and courts to process high-level corruption cases as a key test for these newly established democracies. The common plaintiffs in these cases include (former) state officials or even members of the judiciary. The biggest question facing us now is whether our fragile judicial systems will put up with the political pressures of the past and the present combined.

Post-communist Europe is in a perpetual state of discussing how to strengthen and empower the judiciary. Talks on how to we elect, train, appoint, and sometimes sanction judges seem to be endless. Like in most policy areas, no blueprints exist yet with discernable key principles to identify the directions that support judicial control over the executive. These principles concern judicial independence and impartiality, and are coupled with issues of merit and judicial competence. A proper combination of these ingredients would seem to provide for a system that ensures a check on government and is also trusted by the public.

While the EU and its member states serve as the usual reference points for the post-communist world, the United States provides an alternative model.

While the EU and its member states serve as the usual reference points for the post-communist world, the United States provides an alternative model. While in the former the judges are predominantly appointed, in the latter numerous state judges and other state functionaries are popularly elected. However, the merits of the U.S. model are also being tested. These tests include the judiciary blocks on President Donald Trump’s executive travel bans and the controversies surrounding the “Show Me Your Papers” bill. Such examples have stirred discussions on checks and balances, a much-needed mechanism for the operation of any democratic system.

For a visitor with a different mental map, I was quite surprised to learn that, despite the differences between the stakeholders we met with on our Marshall Memorial Fellowship trip with GMF — be it state supreme justices, civil rights activists, or Wall Street bankers — there was a high level of trust in the independence and competence of the judicial system. The judiciary was largely perceived as the third power less in the spotlight, yet in many cases decisive for the long-term future of policies and checks and balances. Nowhere in our encounters did we hear questioning of the merit of the judges or their operation. Yes, political affiliations and preferences were mentioned; however, there was no discussion of a severely politicized judiciary or questionable judicial processes. As a result, the question of sanctioning judicial misconduct that the post-communist world faces seems to be less prevalent. In fact, emphasis and systemic efforts were focused on the input side of the judiciary: the general consensus seemed to be that high standards for entry to a judicial position are needed in order to minimize the potential for outside influence and avoid sanctions.

In retrospect, the recent clashes between the executive and the judiciary in the United States highlight several lessons for a visitor from the post-communist world. First, for policymakers, the United States underlines the need for a long-term monitoring of entry to the judiciary. It highlights once again the significance of the education system as well as the socialization needed in communities to create an environment not only for future independent and competent judges, but also for prosecutors and lawyers. Second, for decision-makers, the United States dispels the illusion of quick fixes since a more visible impact will mostly likely take a generation. Lastly, the judicial community in Eastern Europe and the Balkans should closely follow U.S. developments. As we have seen in the cases mentioned above, their peers across the Atlantic are undergoing a major judicial test in contemporary history. The outcome of these challenges is likely to set the path for the judicial community in the years to come not only in the United States, but also in the rest of the world.