I recently witnessed firsthand the high cost that is required to ensure the impartial and independent judiciary that the rule of law requires. Last March, I embarked on a 39-hour journey from my home in Washington, D.C., to Kyiv, where courageous Ukrainians work to preserve their beloved country’s laws, institutions and democratic norms in the face of brutal and unlawful aggression by the Russian Federation.
In 2023, I was appointed by the government of Ukraine to serve on the Advisory Group of Experts, or AGE, a body created to help vet candidates for the Constitutional Court of Ukraine, that nation’s highest court. I was honored by the appointment, having spent my professional life working for the rule of law and civility as pillars of democracy and the last 30 years with reformers in the former communist countries of Eastern Europe.
There are 12 members of the AGE, six of whom are Ukrainian judges and academics, and six of whom are international experts. Two are from Poland; one from Ireland; one from Slovenia. Retired Chief Justice of the Ohio Supreme Court Maureen O’Connor and I are the American members.
Over a span of 10 days, we interviewed more than 30 applicants for five vacancies on the Constitutional Court. The interviews were held in a bomb shelter in Kyiv so that our work wouldn’t be interrupted by Russian missile attacks.
The proceedings were simultaneously translated into English and livestreamed for anyone to watch. Bribery and corruption plague many countries that were once part of the Soviet Union, and rooting them out is the chief challenge Ukrainian reformers face. The statute that created the AGE called upon us to probe in public interviews the moral integrity of the candidates.
Some of the exchanges were bracing and made for high drama as applicants were asked difficult questions about their finances and work habits. This level of transparency in the judicial selection process — previously unheard of in Ukraine — has been well-received and will hopefully show the people of Ukraine and the European Union they desire to join that the government is serious in its commitment to the rule of law.
Eight candidates moved to the next round of the vetting process, in which the AGE was required to evaluate their legal competency, with emphasis on their knowledge of constitutional law and human rights. The AGE administered a written exam, created by some of Ukraine’s top lawyers and several highly regarded constitutional law scholars from Europe and the U.S., which the candidates took in a session that was also livestreamed.
After carefully reviewing the exams, the AGE recommended five candidates for appointment to the Constitutional Court to the appointing authorities. They need not accept our recommendations, but they cannot appoint a person we haven’t recommended.
While in Ukraine, my colleagues and I were confronted with the grim reality of war and the high cost the Ukrainian people are bearing to fight Russian aggression. While in Kyiv, we experienced a number of air raid alerts, most coming in the middle of the night, which sent us scurrying to take refuge in the bomb shelter of our hotel. I have never been in an active war zone, and I came away deeply moved by the courage of the Ukrainian people.
All of those with whom I worked, either as members of the AGE or on the staff of young lawyers who helped us with our work, had close family members who were casualties of war. Many had been forced to flee their homes. One woman named Victoria confidently predicted that her name would become common among newborn daughters after Ukraine had defeated the Russian aggressors. Her sense of hope was common among those we met. The rebuilding efforts and the determination of the Ukrainian people to maintain a sense of normalcy in the midst of war are inspiring.
Justice O’Connor and I visited several towns outside Kyiv where Ukrainian soldiers and ordinary citizens heroically stopped Russian advances into the capital, pivotal victories that came with a devastating cost to civilian lives. We visited a mass grave in Bucha that had been filled with the slain bodies of women, children and the elderly mercilessly slaughtered by Russian troops. Bucha is a sobering reminder of the stakes of a battle between forces that deny the dignity of all humans and those committed to the rule of law.
Before departing Ukraine, I had the opportunity to speak with students at three different law schools, answering questions about the AGE’s process and trying to impress upon them the importance of its work. For this war is not simply over territory in Ukraine; it’s a war over whether the rule of law will prevail against the forces of autocracy. A victory in Ukraine will reverberate throughout Europe, with far-reaching effects for the rule of law throughout the world.
Thomas B. Griffith was appointed to the United States Court of Appeals for the D.C. Circuit by President George W. Bush in 2005 and served until 2020. He attended and later served as general counsel for BYU and is currently a fellow at the Wheatley Institute and a lecturer on law at Harvard and Stanford.