As a part of our weeklong celebration of the Constitution, we wanted to shine a light on the vital role that the federal judiciary plays in the American constitutional framework: serving as a check on the other branches of government by ruling on the constitutionality of laws and policies enacted by Congress and the executive branch. The courts can only fill this critical role if they remain strong and independent, free from political interference and undergirded by public support.
There have always been tensions around the courts’ rulings. Presidents and lawmakers across history have disagreed with rulings but have consistently abided by them. This norm is in danger of eroding as the courts have become more politicized in recent decades. That erosion threatens to weaken a key pillar in our system of checks and balances, and in turn, our democracy as a whole. We chose to interview the Honorable Timothy K. Lewis, who has served at a variety of levels within law enforcement and the federal judiciary, in order to get an authentic perspective on the role of the courts in the American democratic experiment. As Judge Lewis puts it, independent and robust federal courts are the “crown jewel” of American democracy, and we must protect the integrity of the judiciary from those who seek to weaken or undermine it.
Judge Lewis served on the United States Third Circuit Court of Appeals from 1992 to 1999. Prior to that, he served on the United States District Court for the Western District of Pennsylvania. Before his time as a federal judge, Lewis worked as an assistant U.S. attorney for the Western District of Pennsylvania and as an assistant district attorney for Allegheny County in Pennsylvania. At present, Judge Lewis practices law at Schnader Harrison Segal & Lewis LLP, where he specializes in alternative dispute resolution, appellate practice, and criminal defense.
Below are some of the highlights (edited for clarity and brevity). The full audio interview is available here:
Q: How do you view the role of the judiciary—how important is an independent judiciary?
Judge Lewis: Well, to put it bluntly, an independent judiciary is the crown jewel in our constitutional democracy. Never has it been more important perhaps than today, because again to be blunt, as I talk to you, right now, it is the only fully functioning branch of government, in my judgement. An independent judiciary is what allows for the other two branches to observe the rule of law and stay within the constitutional boundaries that ultimately determine our identity as a nation. Without an independent judiciary, none of that could happen. The importance of independent-minded people serving as judges who decide cases not based upon political influence or personal predilections or preconceived notions is the only way that the promise of our constitutional democracy can survive and has survived all these years. And we must, at this time in particular, do all that we can to preserve it.
Q: Did you ever experience threats to the independence and integrity of the federal judiciary?
Judge Lewis: Well, there are always efforts to undermine the independence of the judiciary, primarily political efforts. We have seen over the course of history efforts to lessen the power and the authority of judges to make certain decisions. We have seen political forces try to inject bias into the judicial system by finding judges who they think will further their political agenda and that sort of thing.
But, today the threat is different. It really extends beyond the federal judiciary. We are increasingly seeing efforts by legislatures and by political bodies throughout the United States to interfere with the independent judicial process of state courts; we’re seeing it to a lesser degree in the federal judiciary today.
When you have, for example, in my home state of Pennsylvania, in the wake of a very important decision on gerrymandering, a finding by the highest court of the state, that districts in Pennsylvania, Congressional districts, were exceptionally gerrymandered. The response to that, being to seek to impeach, to impeach, and remove from office, the justices who were in the majority in that decision—that is dangerous. That is dangerous, and it is a direct threat to the independence of the judicial process. It’s a direct threat to our democracy. When at the same time, or shortly thereafter, you see the impeachment of justices of the West Virginia Supreme Court, you see the same thing happening in Kansas, and an effort in North Carolina, all with some, and in some cases with extreme, political overtones. That is a danger.
We are also seeing an Administration that has threatened judges. And the President himself has tried to undermine the integrity of the federal courts beginning during the campaign when he attacked a judge because of his ethnicity and race, claiming that he was unfit to preside over a matter in which the then-candidate was involved, because of his ethnicity and his heritage and his race. We’ve seen other instances in which the President and some of his representatives have directly sought to undermine the authority of the judiciary. In fact, that’s happened numerous times already. The only thing that allows for the integrity of the judiciary to flourish is public confidence in the people who administer the federal judiciary. That is to say, the belief in the validity of the decisions, whether you agree with them or not. That they are rendered by judges who are duly appointed and who are trying their best to get it right. And that any decision by a judge, be it a state judge or federal judge, deserves to be obeyed. That is a solemn pact that society makes. It’s part of becoming a member of this society, a citizen. Or even a non-citizen. That the authority of the federal courts is derived from the public’s confidence in the courts. So when the president tries to undermine the integrity of individual judges and higher courts—he’s made comments about the Ninth Circuit and other courts throughout the country—that’s a very dangerous thing. And it is a threat to the independence and integrity of the judiciary.
Q: Your nomination was suggested by Arlen Specter, then a Republican Senator from Pennsylvania. How was your confirmation experience different from now?
Judge Lewis: Well, it’s changed considerably. My confirmation was a cakewalk compared to what we’re seeing now. It’s changed because the country has become more polarized politically. I have my personal view as to what the root of that polarization is, what it stems from, but it’s actually been building and brewing for quite some time. So now yes, you’re absolutely right, we’re seeing an overt politicization of a process that’s really a solemn process.
We are a multicultural society and we’re becoming increasingly multicultural and there are a lot of people pushing back awfully hard on that, because they don’t like it and they don’t want to accept it. And I really think to a large degree that has infused our politics and our social interactions to a certain level in a way that has contributed greatly to this polarization. We can disagree. We’re always going to disagree. That’s beautiful. That’s important. That’s good. That’s great. Be conservative, liberal, moderate. But this has become personal. And it’s become far more pitched. So it’s like a different world from when I was up for confirmation back in 1991 and again in 1992. At that time, there was a blanket of civility that covered all of our interactions in a way. I mean there were stark disagreements and arguments and fights, but nothing like what we see right now. So that’s how it has changed, in my view.
Q: Any idea on practicable solutions on how we might preserve an independent judiciary?
Judge Lewis: Vote people out of office who are irrational. Vote people into office who are rational and who are no matter what their background, or their political views or their ideologies might be, are civil and are willing to reach across the aisle, compromise, and embrace the need for civility in our discourse.
The Constitution Project seeks to safeguard our constitutional rights when the government exercises power in the name of national security and domestic policing, including ensuring our institutions serve as a check on that power.