Poland’s Law and Justice Party (PiS) has pursued a concentrated attack on the Polish judiciary. It is an authoritarian agenda modeled on Viktor Orbán’s power-grab in Hungary, aiming for what the Hungarian Prime Minister called an “illiberal democracy.” The game plan involves statutory measures shortening judges’ tenure in office (often with new, earlier retirement mandates), adding new judgeships or creating new courts, and restructuring judicial appointment and supervision procedures. The outcome is meant to be a judiciary packed with the ruling party’s sympathizers who, in turn, are expected to waive through controversial and illiberal policies.
In Poland and Hungary – but also all around the democratic west – strong-men leaders are looking to clear away the judiciary as a check on their ambitions. Alexander Hamilton might have meant it ironically in Federalist Paper #78, but this sinister global trend wants to realize his promise that the courts will be “the weakest branch.”
Poland is the more compelling case-study for the hostility towards courts. Above all, this is because Law and Justice has had to advance this cynical program with the benefit of a bare parliamentary majority. In Hungary, Orbán has been able to rely on a parliamentary super-majority to entrench the assault on the country’s judiciary in a series of constitutional amendments and reforms. That, at least as a formal legal matter, makes challenges to these developments more difficult in Hungary. The EU has responded more vigorously to the crisis in Poland.
The crisis of the Polish courts was the subject of a discussion among several experts at a recent panel held at Washington & Lee University in Lexington, Virginia (January 23, 2019). More than fifty students and faculty attended. The program received generous support from the Robert Bosch Fellowship Alumni Association and the German Law Journal. The RBFAA’s ties to the program were profound. The crisis in Poland represents one of the most pressing issues for the transatlantic space and liberal democracy in general. But the organizer of the event was Prof. Russell Miller of the Washington & Lee University Law School. Miller was a 1999-2000 Bosch Fellow and he now is a leading commentator on German and European law. One of the panel participants was Irek Kondak, a Polish national working as a Staff Attorney at the European Court of Human Rights in Strasbourg, France. Miller and Kondak met and forged a friendship during Miller’s second Bosch Fellowship stage during which he interned at the European Court of Human Rights.
The panel opened with a presentation on the social and political background to the crisis from Krzysztof Jasiewicz, Ames Professor of Sociology at Washington & Lee. Prof. Jasiewicz is a native of Poland and he completed his academic training in Warsaw and at the Polish Academy of Sciences. His research focuses on democratic processes, especially in Central and Eastern European States. Prof. Jasiewicz provided a succinct and accessible timeline for the crisis, beginning with a dispute over the empanelment of a number of justices at the Polish Constitutional Tribunal in 2015 and leading to the threatened, forced early-retirement of a third of the country’s Supreme Court justices. Prof. Jasiewicz highlighted that the attack on the judiciary is built upon Law and Justice’s extremely fragile command of the government, having won a minimal majority in parliament on a turn-out of only 37% of eligible Polish voters in the 2015 elections. Law and Justice, he insisted, governs with a mandate of merely 18% of Poles. Prof. Jasiewicz finds the illiberal winds blowing through Poland difficult to explain. He noted that Poland’s economy is robust and was the only European economy that did not fall into recession at the end of the last decade. The focus on the judiciary, Prof. Jasiewicz explained, is not a reaction to a particularly controversial decision from the courts. Instead, it seems to be a product of Poland’s unique brand of conspiratorial doubts about democracy, especially following the plane crash in Smolensk, Russia that killed Poland’s president and a number of other government figures and elites.
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| Prof. Jasiewicz’s PowerPoint Slide #8 – Revealing Poland’s Strong Economic Position |
Sharon L. Wolchik, a Professor of Political Science and International Affairs at GWU’s Elliott School of International Affairs, provided some regional context for the crisis. Prof. Wolchik’s research focuses on comparative government and politics in Central and Eastern Europe and she drew the troubling parallel between Hungary and Poland on this issue. She also described the corruption and institutional pathologies that have weakened the judiciary in Romania and Bulgaria. In all these cases Prof. Wolchik sees the medium-term consequences of these societies’ rapid move to liberal democracy after the fall of the communist bloc, despite the near total lack of established democratic culture and institutions.
Irek Kondak, the veteran Staff Attorney at the European Court of Human Rights, described the European response to the crisis. On the one hand, he reported with cautious optimism about the EU’s success in impeding the Polish Government’s latest attacks on the judiciary following the Commission’s initiation of Article 7 sanction proceedings and the Court of Justice’s issuance of a preliminary injunction blocking the enforcement of the problematic policies. On the other hand, Kondak worried that the Council of Europe and the Court of Human Rights might respond too late and too timidly to the crisis.
Russell Miller, the Stombock Professor of Law at Washington & Lee University Law School, closed the panel with a presentation documenting the long American history of manipulating and undermining the integrity of the judiciary. He explained that this pervasive practice – bluntly seeking partisan advantage in the courts – has taken the form of many of the measures involved in the Polish crisis, including court packing, forced retirements, and attempts to strip the courts of their jurisdiction. These maneuvers go far beyond the animosity surrounding Judge Garland’s failed appointment to the Supreme Court and the successful, controversial appointments of Justices Gorsuch and Kavanaugh. Prof. Miller noted that troubling and questionable tactics have been used against the judiciary throughout American history. Roosevelt’s infamous “court packing plan” is only the best known example. He emphasized that these efforts now have taken on steam at the state level. Prof. Miller insisted that he did not offer this American “judicial horror story” as form of succor or sympathy for Poland’s Law and Justice Party. Instead, he hoped it would remind us of the tension that unavoidably exists in a democracy between a powerful judiciary and popularly accountable institutions such as a legislature or a presidency. In light of that natural tension and the current attack on the courts, Prof. Miller urged us to reflect on and consider how to best articulate the need for a strong, independent judiciary.
The panel concluded with a lively round of Q&A.
For those interested in learning more about these issues, Prof. Miller recommended the following readings:
https://www.nytimes.com/2018/07/05/world/europe/poland-court-crisis-constitutional-tribunal.html
https://www.nytimes.com/2018/12/17/world/europe/poland-supreme-court.html