When Abner J. Mikva died last year, the nation’s judicial system lost one of its great champions. Throughout a legendary career of public service, he held a profound belief in the role of courts and the concomitant need to preserve the independence of judges.
Mikva began his public service in the Illinois legislature, representing Chicago. From that platform, he was elected to the U.S. House of Representatives, where he represented one Chicago district for four years, lost after a redistricting fight, and then was elected to represent another part of the city for five more years. To those who knew him, there was no doubt that Mikva loved his time as a legislator, enjoying the creativity, problem-solving, and collegiality in the House of Representatives.
In 1979, Mikva left the House when President Jimmy Carter nominated him to the U.S. Court of Appeals for the District of Columbia Circuit. After 12 years, Mikva became chief judge in 1991 and held that post until he left to become White House Counsel in 1994 under President Bill Clinton, leaving government service in 1995.
Mikva cherished the protection of rights and liberties and the check on government power that the courts provided. But he understood that this extraordinary role for the courts sometimes ran counter to majority rule and made the courts targets of public frustration and criticism. These views and concerns led him to several important ideas that flow from one another. He believed deeply in the independence of the judiciary and that judges must be willing to exercise that autonomy.
“[W]hat I have learned most from my excursions in all three branches and, before that, as a practicing lawyer, is the quality most needed in federal judges. That quality is courage,” he said in the Cardozo Lecture in New York in 1997 (published as The Judges v. The People: Judicial Independence and Democratic Ideals, 19 Cardozo L. Rev. 1,771, at 1,775 {1998}).
Part of that courage involves the power of judges to counter the will of the majority, an important bulwark against abuses of authority. In the same speech, he described himself as among those “who think that the most important function of a judge is the capacity to swim upstream….” (p. 1,772).
Precisely because that power runs counter to majoritarian principles, Mikva said, “(J)udges need to know when they must exercise that awesome power and when they must withhold it,” he said. “They need to know enough about the political process to know that the high bench and the black robe will only carry so far against a popular majority, and that the power must be used with restraint.” (p. 1,775–6.) In other words, “When to hold ’em and when to fold ’em is even more tricky in judging than in poker,” Mikva said (p. 1,776).
It is fitting that when this remarkable public servant and passionate defender of our courts died last year, he “folded ’em” on July 4. For his dedication to the power, responsibility, and independence of the courts, he is a Human Rights Hero.
