In times of democratic strain, clarity must come not only from scholars and journalists but also from those who have sworn to uphold the Constitution with impartiality and courage.
This second in a series in the Fulcrum, “Judges on Democracy,” invites retired federal judges to speak directly to the American public about the foundational principles of our legal system: the separation of powers, the rule of law, and the indispensable role of an independent judiciary in our democratic republic.
These voices are not partisan. They are principled. Having served on the bench with fidelity to law over politics, these jurists now step forward — to advocate for any party or agenda, but to illuminate the constitutional architecture that protects liberty and equality for all.
Their reflections are rooted in experience, not ideology. Their warnings are grounded in precedent.
At a time when threats to judicial independence are growing more frequent and more brazen, The Fulcrum offers this series as a civic resource and a moral compass. We believe that understanding how our courts function and why their integrity matters is essential to preserving the democratic experiment our founders envisioned.
Today, Honorable Philip M. Pro, a former U.S. District Judge for Nevada (1987-2015), known for his dedication to fairness and extensive experience in mediation, arbitration, and as a court-appointed neutral after his judicial career, bringing decades of distinguished federal and state judicial service, including time as Chief Judge for the District of Nevada answers some questions that are reminders that the judiciary is not a tool of power; it is a bulwark against its abuse.
Why did the framers enshrine an independent judiciary – and how does that safeguard our democracy today?
To preserve the separation of powers between the three co-equal Legislative, Executive, and Judicial Branches of Government, and to ensure that the judges of the Judicial Branch would be able to render judicial decisions on the basis of the law and facts before them free from political pressure, or other undue influences, the Framers crafted Article III of the Constitution to provide protections against reductions in compensation or removal from office for rendering politically unpopular decisions which were compelled under the applicable law.
As Justice Anthony M. Kennedy testified at a hearing on Judicial Security and Independence before the United States Senate Committee on the Judiciary on February 14, 2007, “Judicial independence is not conferred so judges can do as they please. Judicial independence is conferred so judges can do as they must.”
While the proper measure of judicial independence engrained in the plain language of Article III was debated in the Federalist and Anti-Federalist essays prior to ratification of the Constitution, its fundamental scope was firmly cemented in the Supreme Court’s 1803 decision in Marbury v. Madison.
The independence of the judiciary has been tested many times throughout our nation’s history, and is under attack today, but it has stood the test of time for 236 years. Combined with the separation of powers engrained in the Constitution, the independence of the federal judiciary has provided the essential framework for maintaining the Rule of Law which provides the very foundation for our Constitutional Republic.
Why are federal judges speaking out now – what compels you to break tradition and raise your voice?
In his Year End Report on the Federal Judiciary on December 31, 2024, Chief Justice John Roberts cited the growing dangers to the independence of the Judicial Branch posed by the alarming increase in hostile communications, intimidating threats, and acts of violence directed at federal judges in recent years. Emphasizing that “violence, intimidation, and defiance directed at judges undermines our Republic,” he encouraged the three branches to work cooperatively and respectfully to preserve the independence of the judiciary and the rule of law.
Based upon the constant barrage of inflammatory and unfounded attacks on the federal judiciary over the last 12 months by the highest officials in the Executive branch and some in the Legislative branch, it is clear the Chief Justice’s message has been ignored.
In the face of such outrageous and corrosive rhetoric shouted from the bully pulpit of high political office, and amplified by an unprecedented misuse of social media against judges who cannot respond on their own behalf, I consider it my duty as a retired Article III judge to defend my active colleagues, the independence of the judiciary and the Rule of Law.
Whether by design, ignorance, or both, the incendiary rhetoric from high-level Executive level officials, denigrating the rulings of federal judges, and often accompanied by disparaging personal attacks against the character of the individual judges who issued them, threatens to erode the public’s confidence in the Judicial branch and poses a real threat to the rule of law.
Why is using impeachment to challenge judicial decisions a threat to constitutional balance?
Attempting to use impeachment to challenge judicial decisions is an attempt to usurp the Article III powers of the Supreme Court to determine the validity of judicial decisions, and represents a clear threat to the constitutional balance provided by the separation of powers, the independence of the judiciary, and the Rule of Law.
When the Framers drafted the Constitution in 1787, they wisely divided the powers granted to the federal government by “We the People” between three co-equal, yet co-dependent Legislative, Executive, and Judicial Branches. To ensure that no single Branch could exercise total control of the federal government, they included a variety of “checks and balances” requiring the Branches to work cooperatively thereby ensuring a necessary equilibrium in conducting the affairs of government.
The power of impeachment conferred on Congress allows for the removal from office of “the President, Vice-President or civil officers for conviction of Treason, Bribery, and other High Crimes and Misdemeanors.” The power of impeachment is thus limited. While it extends to judges for High Crimes and Misdemeanors, as most recently noted by Chief Justice Roberts in his 2025 Year End Report of the Federal Judiciary published on December 31, 2025, it has been recognized since the acquittal of Justice Samuel Chase at his impeachment trial before U.S. Senate in 1805, “disapproval of a judge’s decisions,” is “an invalid basis for removal from office.”
Under Article III of the Constitution, Federal judges bear the responsibility to adjudicate cases arising under the Constitution and laws of the United States. We are called upon daily to decide cases large and small involving a vast array of disputes which sometimes involve complex constitutional issues. In rendering a decision judges attempt to ensure every interested party has an equal opportunity to present all evidence and arguments in support of their position. We then provide an explanation of how the governing law applies to the facts of the case and provide a decision which the parties and the public can understand. Those decisions can be appealed to a reviewing court or in some cases become the subject of statutory change or even Constitutional Amendment. Those calling for impeachment of judges in retaliation for judicial decisions is an inappropriate attempt to remove judges for doing their job.
What do you wish more Americans understood about the role of judges in preserving liberty and equality?
I wish more Americans had a better understanding of the respective roles of our three Branches of government and of their civic responsibilities as citizens.
The United States Constitution is not a perpetual motion machine that will automatically perpetuate itself. Ensuring the preservation of the benefits of the individual and economic liberties guaranteed under the Constitution, requires the energy of an informed and engaged citizenry to fuel the mechanisms of our government.
During nearly 35 years on the federal bench, I have had the opportunity to participate in many “rule of law” programs conducted in more than twenty-five countries. Several were emerging democracies lacking experience with self-government guided by the rule of law or a tradition of an independent judiciary. These were eye-opening experiences and I wish every American could experience life in countries where citizens do not enjoy the blessings of the individual and economic rights we take for granted in the United States.
Greater emphasis needs to be placed on civic education in our schools and in our communities. Every American can do something to boost their civic engagement through voting, jury service, or involvement in the civic life of their communities and those of us who can, should encourage them to do so.
What moment from your time on the bench best captures the weight – or wonder – of serving justice?
It is impossible to single out one moment that captures the weight and wonder of serving justice. The honor of serving nearly three and a half decades of my professional life as a federal judge was at once enormously gratifying and humbling. Disputes legal and factual, simple and complex, human and passionate, surge up against the walls of our courtrooms every day. The judge has the best seat in the house but also carries the responsibility for ensuring due process and guiding each case to a full and fair resolution according to applicable law. For a lawyer dedicated to public service, what could be better than that?!
