By Lora Johns
Brett Kavanaugh’s nomination for the U.S. Supreme Court has created a kind of panic in the States. Activists, scholars, and commentators fear the crumbling of long-standing civil rights precedents, the downfall of democratic checks and balances, and the looming threats of a Court that, they suspect, would not hold the Executive Branch accountable to the people. At the same time as the United States is experiencing this ferment, another democracy’s judiciary is undergoing a far more turbulent upheaval.
Poland’s conservatives and liberals have been warring over the judiciary for several years. In the summer of 2015, the liberal Civic Platform-controlled Parliament appointed several judges. But in October 2015, the Law and Justice Party gained control of both houses of Parliament and just two months later used its new position of power to put hand-chosen judges on the Constitutional Court’s bench. It also refused to recognize the judges that the former Parliament had appointed.
Summer last year saw even more extreme legislative turmoil over the bench’s composition. The lower house of Parliament voted to give the political branches the ultimate control over the court’s composition. The job of nominating judges would pass from the National Judiciary Council to the Parliament, giving the legislature unprecedented control over the courts. Critics stressed that this would undermine the judiciary’s independence, and thousands of people took to the streets in protest, crying “konstytucja” (“constitution”). Despite a formal warning from the European Commission, President Duda signed an overhaul of the Polish judicial system into law.
Now, Parliament has mandated that the justices on the high court must retire at age 65. Enforcing this law would immediately dismiss 27 of the 74 judges currently serving from the bench. Only the President would have the power to override the retirement cutoff and reinstate a judge upon request. No criteria control the President’s discretion, and the law does not provide for judicial review of the decision to (not) reinstate a judge. Since the law also expands the size of the court to 120 judges, it would also give Parliament the opportunity to pack the court with its chosen candidates. Unsurprisingly, protests continue to flourish.
In the face of what many perceive as an authoritarian threat to a free judiciary, the European Commission has launched an infringement procedure to try to protect the independence of the Polish judiciary. It argues that the new laws are not in line with European standards on judicial independence and the rule of law as enshrined in Article 2 of the Treaty on European Union. The International Commission of Jurists, a nongovernmental organization, has also spoken out against the new system. Many other international legal bodies, like the Council of Bars and Law Societies of Europe, have made similar statements and taken actions aimed at mitigating the Polish Parliament’s manipulation of the judicial system.
In the U.S., some scholars and pundits have argued that various aspects of the current administration related to the Supreme Court threaten a constitutional crisis, in part because both the House and Senate are controlled by the same party; in part because of the circumstances under which Anthony Kennedy retired from the Supreme Court; and in part because Brett Kavanaugh was nominated to fill his seat. There have even been suggestions of court packing as a preventive measure against Executive tampering with judicial independence. But what makes the constitutional crisis in Poland different is the involvement of international bodies and nongovernmental organizations with the power to influence, if not directly control, the actions of that country’s legislature. The Treaty on European Union offers actors like the European Commission an opportunity to examine and analyze the Polish Parliament’s treatment of the courts in a way that ultimately lays bare the legislature’s political motivations and brings the facts to the public from a third-party perspective. The EU at large is neither for nor against either of Poland’s opposing political parties; it can serve as a (relatively) disinterested mirror to reflect the changing nature of judicial independence (or subservience) and provide much-needed perspective.
As we grapple with our own crises of democracy and courts and judges in the United States, it would serve us well to take a moment away from looking inward and turn towards the East, to observe, to compare, and to learn. A threat to judicial independence in any democracy is an issue that we should pay close attention to, no matter where we live.