By staying on the job, Poland's top judge fights the right-wing government
Poland is in the midst of a battle over its Supreme Court, which the ultraconservative ruling party is trying to remake. And by quietly coming to work, Judge Małgorzata Gersdorf has become the face of resistance.
Małgorzata Gersdorf didn’t sign up for this role.
The head of Poland’s Supreme Court is not known as an ideologue, or a born leader. She has rarely sought the spotlight, and a colleague says she is “not a revolutionary.”
But she now finds herself the face of the resistance to the latest move by Poland’s ruling party aimed at increasing its control of the judiciary. In defiance of a new law that effectively remakes the court – including her own position – she showed up for work on July 4, vowing to supporters to continue her constitutionally mandated six-year term. For First President of the Supreme Court Gersdorf, it is not a choice, but a duty, and at stake is not just her own term on the court but the future of Poland.
“I am facing a huge challenge, but I cannot accept what is happening. This is because upon assuming this prestigious office I swore on the Constitution, that I will defend and protect the Constitution and the law,” she says in an interview. “I cannot react in a different way because that would mean that I have no honor. I am not defending myself, contrary to what some say. I am defending the Supreme Court. I cannot approve this destruction of our state.”
Gersdorf is not alone in her assessment. The move by the ruling Law and Justice Party (PiS) to lower the retirement age of Supreme Court justices, potentially forcing out more than a third of the court, has drawn thousands of protesters in the capital. It has also provoked strong condemnation from the European Union, which has initiated legal proceedings that could end up in the European Court of Justice. Gersdorf is now in a standoff whose resolution could have implications for Poland’s relationship with the EU – and for the rule of law and even democracy in the country.
An ‘unwilling hero’
Since PiS took power in 2015, the conservative party has waged a campaign to centralize power and increase control of the judiciary, with significant results. PiS officials claim the judicial reforms are needed to fight corruption and rid the courts of communist-era influence. Critics call it a smokescreen to reduce the judiciary’s independence to ensure the increasingly authoritarian party’s grip on power. The party’s latest target, the Supreme Court, is tasked with validating election results. A party ally, President Andrzej Duda, will appoint the replacements for those forced into retirement. Since the new law came into effect, 18 judges have left the court, and 12 others have requested to be allowed to stay on past the new retirement age of 65.
Gersdorf’s colleagues say it is her consistency and commitment to the Constitution that have put her in this position, not her eagerness to be in the spotlight. She is an “unwilling hero,” says her colleague Robert Grzeszczak, a law professor at the University of Warsaw, where Gersdorf also teaches. “She never admitted that she is a type of revolutionary.”
But, he added, “she is not a person who will shut the doors and walk out. She will stand up for what she believes in, and she believes in the Constitution, and that her term in office should last six years, which is written in the Constitution”
Michał Laskowski, a judge and spokesman for the Supreme Court, says the chief justice will not back down. “Judges are not fighters, people who engage in civil disobedience, but we are dealing with extraordinary times in the Supreme Court's history. And the first president of the court, Mrs. Gersdorf, has a strong character and a strong sense of responsibility for the court and the country,” he says.
That sense of responsibility to the court and Constitution may have been cultivated from a young age by her parents: Her father was a law professor, and her mother a judge. Gersdorf was born in Warsaw, where her parents moved after World War II.
In a twist of fate, she was childhood neighbors with the Kaczyński twins – who later founded the PiS. President Lech Kaczyński, who died in a plane crash in 2010, appointed her to the court in 2008. His twin brother, Jarosław Kaczyński, is the current head of the party, and exerts power behind the scenes in Poland, though he has not held government office since 2007. The brothers were older than her, so they didn’t play together as children, she says.
As adults, she knew Lech well because they both specialized in labor law, though she does not personally know the head of the ruling party. “I don't think that these attacks on me have any personal backgrounds, as I didn’t fight with Kaczyński brothers in a playground when we were kids,” she joked.
Living in a different world?
Gersdorf has not escaped controversy. She has at times been criticized by the opposition for appearing to support some PiS moves. Last year she took part in the nomination ceremony of a judge appointed to the Constitutional Tribunal by PiS, which many saw as legitimizing his controversial appointment. And she presented her own bill on Supreme Court reform, in which she borrowed some ideas from PiS like creating a new disciplinary chamber in the court. Iustitia, the Polish judges’ association, strongly criticized her plan.
Professor Krystian Markiewicz, president of Iustitia, says though he had differed with Gersdorf on that issue and others, she was willing to listen. “We don't agree on everything, but she is always willing to talk with people,” he says. “She is not stubborn, and she listens to others even if she doesn't agree with them.”
Gersdorf incited significant backlash with a 2017 interview in which she complained that the monthly salary of district court judges – 10,000 zloty, or about $2,700, a generous salary in Poland – was enough to live well “only in a province.” Remarks like that have fueled criticism that Gersdorf is elite and out of touch. That’s a sentiment echoed by some of the supporters of the judicial reform.
Michal, a young lawyer at the University of Warsaw’s law faculty, says the reforms hadn’t gone far enough – the ruling party should fire and replace all the judges, he says. “Of course, we are not sure if they are better than the current judges, but I am ready to take a risk.... Most judges are arrogant, they ignore ordinary people, they are not interested in their good. They feel like they are the elite, they live in a different world.”
It’s unclear how Gersdorf’s standoff will end. She gave herself some breathing room by taking leave this week, and plans to use the same delaying tactic after briefly returning July 20, she says. But that doesn’t mean she is giving up. “I don't have any weapons,” she says. “I can only fight with my words by continuing to repeat that what is happening is absolutely against the Constitution.”
She rejects the ruling party’s reasoning for the reforms. Though her husband was formerly a member of the Communist Party, she says she has never belonged to it, despite accusations to the contrary. “Such lies are really sad,” she says. “What we are experiencing in Poland is the creeping destruction of the judiciary.” New judges will be screened by the National Council of the Judiciary, a “completely political institution now,” she says.
Gersdorf appears to have support in the country. In addition to the large protests in Warsaw, a recent poll conducted by IBRiS for the widely used Onet.pl website found that she is the fourth most trusted person in the country. Another for the Rzeczpospolita daily found that more than 66 percent of respondents trust or somewhat trust the courts, and 54 percent oppose the reform.
She also has support within the judiciary, says Laskowski. “Inside the court's corridors you can feel bitterness that the government conducts politics against judges, and this politics is based on the collective responsibility – politicians present a few cases of unacceptable behaviors of judges and say that all judges are like this.”
Despite EU criticism, Polish officials have refused to back down. Some Poles are hopeful the outside pressure will influence PiS – but not Gersdorf. “We cannot rely only on the European Commission. Even if Brussels reacts I am afraid it is going to be too late, like with logging the Bialowieza forest – it was stopped when almost all the trees were already logged, it could be the same with us,” she says.
Instead, she hopes judges can help citizens understand why the courts are independent, and why they should stay that way. “It is our fault that we did not explain this earlier to society,” she says. “We've received a hard lesson, but I believe that some day things will get better – they have to.”