... virtue, as unassailably good as Motherhood. In the U.S. and elsewhere, the separation of powers was designed to assure this independence.

But there are many types and levels of independence. The extreme of independence in any major Western nation is found in Italy. The result should be a corps of magistrates (both judges and prosecutors) freer of politics and abuses than any other country. But result has been the opposite of that, for reasons we’ve discussed in earlier columns and elsewhere: the high wall built against outside politics has served to protect the rampant political abuses inside the wall. Contributing to this cancer has been the magistrates’ relation to public and press. The river of leaks that flowed to supporting newspapers during the Mani pulite campaign [Operation Clean Hands] was crucial to the Milan magistrates’ political goal of, to quote one of them, “turning Italy inside out, like an old sock.” The technique was revived last month as the magistrates advised the Prime Minister of a new investigation into allegations against him and, at the same time, passed the (supposedly confidential) details to Corriere della Sera.
This is manipulation, manipulation of the press by the magistrates, and manipulation of the public by both parties, and the wall of independence leaves ministers of government and, largely, even the “governing body” Supreme Council of the Magistracy, helpless to respond. Nor, for all the clamor about reform legislation, is the parliament likely to put a serious breach into the protective wall: judicial independence is still like Motherhood.
No country has found the perfect arrangement. But there is an imperfect improvement available. The countries whose judiciary has served democracy best are those that permit the greatest transparency to the press, are willing to open the doors and windows of debate, in which the judges and prosecutors themselves participate. The Milan pool did not tolerate serious questions about the bias clearly displayed in its choice of which case deserved zeal, which should gather dust. In 1998, when Stefano Vaccara accomplished the unique feat of luring a couple of the pool’s stars into exactly such a debate in the pages of American Oggi, the Justice Minister of the time, Giovanni Maria Flick, now Vice President of the Constitutional Court, stepped in. First, he disagreed completely (and correctly) with the magistrates’ assertions about whether cases were pursued selectively. But then he disappointed, criticizing the magistrates for their esternazione (an Italian neologism for the sin, in a closed fraternity, of speaking out).
But that participation in genuine debate was exactly what’s needed, not calculated leaks or lawsuits. The threat of suits for defamazione, used more than 400 times by the magistrates themselves in the Mani pulite years, may not intimidate the powerful, but has had a stifling effect on scholars, smaller papers, and publishing houses, to the extent that last year’s book by Dina Nerozzi on the misuse of incarceration, “Colpevole…d’innocenza” became a most peculiarly roman à clef: she used fictitious names for those who might sue, real names for those who probably wouldn’t.
So the same unruly democratic disorder is the imperfect, but best available, corrective in this field, the same as we found last week for the relations between politicians and the press. In the meantime, Massimo D’Alema was displeased by Il Foglio’s story on DS financing. So D’Alema went to court and sued. Another disappointment.