Experiencing China again for the first time
By Willis P. Whichard Special to the Smoky Mountain Sentinel

Editor's note--Willis (Bill) Whichard is a former member of the North Carolina State Senate; a former Justice of the North Carolina Supreme Court and has recently retired as Dean of the Law School at Campbell University. He and his wife, Leona, are part-time residents of Clay County. A report of his trip to China is being published as a 12-part series in the Sentinel.

Part VI --China--explaining the training of American judges

On the afternoon of our third day about twenty members of our delegation went to the Chinese National Judicial College on the outskirts of Beijing. The college trains all of China's senior judges. We were told there are 35,000 senior judges in the entire country. 8,000-10,000 per year are trained at the college. All other judges are trained at the provincial level.

The building and grounds were once used as a high school. they are too small for the current operations of the college. A new facility, funded by the central government, is under construction closer to the center of Beijing; it should be ready in about a year.

The College provides judges with newly issued laws and regulations. It holds seminars on the handling of complex cases. Ethical training is provided on an ongoing basis. When China joined the world Trade Organization in 2001, the College advised the government on the legal aspects. At times the College is called upon for substantive legal research on behalf of the Ministry of Justice, and at times it engages in substantive rule

making.

Two hundred ten judges from all over China gathered in the college's auditorium for formal presentations by three members of our delegation. I spoke first on the topics of independence of judges and recusal of judges in the American system. I began by noting that the U.S. has the most complex legal system in the world. this is because we have two systems: federal and state. Thus, wherever one is in our country, he or she is governed by two constitutions and two sets of laws, which may at times conflict. I continued by saying that in the early history of our country the federal judges were not really independent. They were viewed as extensions of the Federalist administrations, and they traveled the federal circuits admonishing grand juries about the importance of loyalty to those administrations. Two developments changed this practice. First, when the Jeffersonions acquired power, Federalist Justice Samuel Chase was impeached for his partisan jury charges. although he survived the proceeding and was not removed from office, judges were sensitized to the outrage and stopped the practice.

Second, John Marshall's decision in Marbury v Madison established that it is the province of the judiciary to say what the law is. Judges thus needed to be independent of the other branches of government to pass on the constitutionality of their acts or actions.

I then noted the inevitable tension between independence and accountability of judges. In the federal system, in which judges are appointed for life, the emphasis is on independence, and the risk is that accountability is compromised. In state systems, which subject judges to some form of election, the emphasis is on accountability, and the risk is that independence is compromised.

The other topic assigned to me was recusal of judges. In sum,I noted that judges usually voluntarily excuse themselves from hearing a case when they have a conflict of interest or when that is a reasonable perception. If the judge fails to remove him/herself, the lawyers or parties can file a motion for removal .For obvious reasons, however, most lawyers are reluctant to do this.

Following my presentation, Frank Gordan, former Chief Justice of the Arizona Supreme Court, spoke on discipline of judges. He noted that the federal judges are appointed for life and can only be removed in special circumstances. At the state level, each state has Rules of Judicial Conduct, and judges can be removed from office or censured for violating them. The discipline is usually imposed by the state's highest court. Some states create councils for judicial discipline.

Our final presentation was by Justice (retired) Beatrice Shainswit of New York Supreme Court, who told of her personal experience in a state where judges are chosen and retained in partisan elections.

In the question and answer session that followed, our delegation leader explained the special role of the American Bar Association and state bar associations in evaluating potential judges on matters of competency and character and in making those evaluations public. The Chinese judges were interested in the compensation of judges in the U.S.; the standards by which appellate courts review the work of trial courts; the training of American judges; and the influence, if any, of party affiliations.

Steve Zack, who was Vice- President Al Gore's lawyer in Bush v Gore (2000), made a closing statement for our delegation. He noted his involvement in judicial selection at both the federal and state levels. All judicial selections systems, he said, have their strengths and weaknesses; but the objective of all must be to assure judicial independence.

Next week: China--tourist sites

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