Depoliticizing the judicial system

By Enrique Vázquez Quintana, MD

The justices of the Supreme Courts of both Puerto Rico and the United States are entrusted with interpreting the constitutions of their respective jurisdictions.

In both jurisdictions, judges are nominated by the president or governor, typically from among individuals aligned with the governing political party. In the United States, these affiliations are generally described as liberal or conservative; in Puerto Rico, they are often associated with the Popular Democratic Party or the New Progressive Party. Judicial nominees are subsequently confirmed by the Senate. This process underscores the fact that judges are not directly accountable to the electorate in the same manner as members of the executive and legislative branches.

The three branches of democratic government—Executive, Legislative, and Judicial, as described by Montesquieu in 1748—do not always operate in a manner that reflects an equitable institutional balance. In practice, the method of judicial appointment may strengthen the influence of the executive branch over the long term. President Abraham Lincoln’s ideal of government “of the people, by the people, and for the people” is, therefore, in the author’s view, imperfectly realized in the contemporary United States. Federal judges in the United States serve life terms, while judges in Puerto Rico generally serve until the age of seventy. Concerns regarding prolonged judicial tenure have been discussed in legal scholarship, including Professor David J. Garrow’s article, Mental Decrepitude on the US Supreme Court, which examines historical instances of physical and mental decline among Supreme Court justices. As a result, the jurisprudential influence of a president or governor may extend well beyond that official’s term in office. Because judges are often selected from among those aligned with the appointing authority’s political philosophy, this process may contribute to the ideological composition currently observed in the Supreme Courts of both the United States and Puerto Rico.

Altering that composition may prove exceptionally difficult for any future administration. For that reason, the mechanism for selecting judges in both Puerto Rico and the United States merits careful reconsideration. Judicial appointments need not be determined primarily by ideological affinity with the appointing governor or president. Rather, the process should give greater weight to the professional, ethical, and intellectual qualities required of judicial office. Public confidence in the judiciary depends upon the perception that judges are selected on the basis of merit, independence, and integrity.

Supposedly, judges have immunity, impunity, and infallibility. The only countries in the world where judges have immunity and impunity are England, the United States, Canada, Australia, and the unincorporated territory of Puerto Rico. In all other countries, judges can be sued, fined, removed from their posts, and even imprisoned. In Puerto Rico, lawyers are afraid, bordering on terror, of judges, since they are the ones who punish them and suspend them from their practice. It is not that it is promoted to sue judges because we do not agree with their decision, but when they incur in a gross judicial error, equivalent to prevarication, an error that cannot be corroborated by any other evidence.  Lawyers are a class that suffers from unhappiness, and the only thing that compensates for their unhappiness is their fees, which are confidential, unlike all other professions whose fees are public. Lawyers do not make final decisions; there is always a winner and a loser; it is the judges who make the final decisions.  The immunity of judges is not in the Constitution of the United States, nor that of the states, and even less in the Constitution of Puerto Rico. Judicial immunity is statutory, made by judges for the judges themselves.  

The judicial immunity of the United States, transferred to Puerto Rico by our colonial relationship, is copied from England. American lawyers very accommodatingly accepted judicial independence and adopted it as immunity and judicial impunity. The purpose of judicial independence is for judges to work and make their decisions without fear of being sued or losing their jobs. That places them on a higher level than the other citizens of the planet. But instead, what it has promoted is that it has turned some judges into tyrants, who cannot be challenged except by the appeals process. Since world domination under the rule of England, judges are on the bench at a higher level, commoners, plaintiff and defendant advocates, witnesses, and defendants are at a lower level. That arrangement bothers even a psychiatrist friend who should not have problems with authority. In the documents submitted to the judges, the lawyers beg (pray) your excellency and honorable judge to consider their arguments, as if they were a king or a god.  The fact that lawyers are terrified of judges because they can be found against them in future cases is evidence that lawyers are convinced that judges can make decisions not based on justice but on discrimination and prejudice. Judges who make flattered decisions when confronted with evidence contrary to their previous opinions demonstrate immaturity, prejudice, and a lack of judicial temperament.  

We must adopt in Puerto Rico and the United States the experiences and jurisprudence of the world courts to improve the judicial system of both countries.  

To this end, an amendment to the Constitution of Puerto Rico and the United States is required that entails the following parameters:

1. Judicial service should be subject to a mandatory retirement age of seventy.
2. Judges should undergo annual physical and mental health evaluations beginning at age sixty.
3. If a panel of three physicians determines that a judge is incapacitated, that judge should be required to resign from office.
4. Judges should enjoy judicial independence as an essential component of the separation of powers in a democratic system of government.
5. Judicial independence, however, should not be construed as conferring absolute immunity, impunity, or infallibility. Any existing protections should be clearly defined and subject to appropriate legal limits.
6. Judges must conduct themselves lawfully, ethically, and with moral integrity at all times, and they must not abuse the authority of their office.
7. Judicial opinions should remain consistent with the best available scientific and professional knowledge of the time.
8. In cases of gross judicial misconduct or egregious miscarriage of justice, judges should be subject to appropriate legal review and accountability mechanisms.
9. An Institute of the Judiciary should be established to provide specialized education and preparation for attorneys who aspire to judicial office.
10. Judges, including Supreme Court justices, should be evaluated by an independent institutional body created by the legislature and composed of judges, attorneys, physicians, legislators, and citizens.
11. That same body should also review complaints involving attorneys’ professional conduct, thereby reducing the risk of undue fear or perceived retaliation within the legal profession.

In Puerto Rico, immunity from prosecution is conditional as established in Feliciano Rosado v Matos Jr.  (110 DPR 550, 1981), decided under the presidency of Hon. Hiram Torres Rigual and Concurrent Judge Hon. Antonio Negrón García, certified—”No one, least of all the judges are above the rule of law; the dogma of absolute immunity is eliminated, and conditional immunity is established.”  However, Puerto Rican judges intend to take accommodating shelter under the statutory immunity of the US system—the best of both worlds!

Alexander Hamilton, in Federalist 79, opposed any constitutional attempt to limit the retirement date of justices; judges must serve for life. The problems of mental and physical incapacity and decrepitude that judges have shown to suffer from since the justice system was established in the United States have shown that Hamilton was wrong. In the years 1937, 1954, and 1970, there were attempts to reduce the term of judges in their posts, but these attempts did not progress. However, the time has come to depoliticize the judicial system and prove Hamilton wrong. 

Hon. Justice Richard A. Posner of the Chicago Court of Appeals for the Eighth Circuit observed in 1995: “The judicial system is the primary geriatric occupation of the world.” That is why a Geriatric Hospital must be created in Puerto Rico.