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The Schiavo Case's Fallout Must Not Make Us Lose Sight of a Key Truth:
Our Imperial Judiciary's Problems Transcend Partisanship


Thursday, Apr. 14, 2005

In recent days, it has become a popular Democratic and progressive sport to condemn Rep. Tom DeLay (and his crony Rep. John Cronyn, among other conservative Republicans) for undermining the "independence" of the federal judiciary.

And to be sure, these right-wingers have given the left plenty of political fodder by launching ill-conceived, hypocritical, and in some instances ludicrous verbal attacks on the rhetorical boogeymen known as "activist judges."

To suggest, for example, that the recent tragic attacks on federal judges and their families are somehow linked to liberal judicial-decision-making is baseless, irresponsible -- even reprehensible.

But liberals should exercise some caution before coming to the judiciary's all-out defense. We are in the process of surrendering many of the more important questions facing this nation to the most imperial judiciary in American history - and not one that consistently exercises its unprecedented authority either wisely or well.

Liberals Should Not Embrace Our Imperial Judiciary

Not so long ago (five years is no eternity, except perhaps in politics), Democrats and progressives were assailing a judiciary "run amok" (to borrow a DeLay-ism) as the Supreme Court handed the presidency to George Bush in Bush v. Gore.

This was not a mistake. Rather, it was a recognition that the federal judiciary, and the Supreme Court in particular, too often decide the momentous legal and moral issues of our time based on little principle and lots of self-aggrandizement.

Judicial power, no less than any other kind, requires a degree of accountability. It's true that liberals have every reason to scorn the current spate of witless and inflammatory comments of disgruntled conservatives. Yet that does not change the fact that we are currently failing in the significant enterprise of finding a sensible balance between judicial "independence" and the exercise of excessive unaccountable authority by unelected life-tenured judges.

The Schiavo Case: Its Judge-Bashing Was Unfair, But Some Judges Do Deserve Reproach

The sad plight of Terri Schiavo has brought out the very worst in judge bashing. As I explained in a previous column, in passing "Terri's Law," GOP conservatives set up federal judges to take the political heat for Schiavo's death. Then they turned, spitefully, on the very judges to whom they had passed their political football.

Although the legislation's conservative sponsors gave Schiavo's parents a nominal right to bring suit in federal court for violations of federal law, they gave the parents no new federal law rights on which to sue. As a result, Terri's parents were left with nothing but a series of transparently weak claims doomed to failure. Worse, they were left to present these claims before federal judges who were naturally loath to embroil themselves on an emergency basis in the extraordinarily contentious debate over Schiavo's right to control the circumstances of her own death - a debate that had already played out in state courts for twelve years.

With the inevitable denouement now having played out in federal court, the conservatives have compounded their original sin by heaping scorn on the federal judges who refused to order Schiavo's feeding tube re-inserted, denigrating them as "constitutional cowards." The real cowards, however, were the congressional conservatives who put these judges on the firing line in the first place, so that they themselves could remain out of the line of fire.

The senselessness of this particular brand of bloviation is readily exposed. The federal judges in the Schiavo case applied federal law in such an unremarkable way that not a single Supreme Court justice - not even Antonin Scalia or Clarence Thomas - expressed interest in granting the parents' asked-for relief or otherwise reviewing the case.

The Fallout of the Schiavo Case: Threats to Impeach and Jurisdiction-Strip

To add insult to injury, DeLay and others are now using the occasion of the Schiavo case to advance a broader and more troubling agenda.

They have attacked, in particular, recent Supreme Court decisions declaring the juvenile death penalty unconstitutional and granting constitutional protection to homosexuals in expressing their sexual preferences. In response to these decisions (neither of which were surprising as a legal matter), the right-wing has started talking darkly of mass impeachments, of cutting the judiciary's budget, and of stripping federal courts of their jurisdiction over certain kinds of cases.

These are empty threats. Several key Republican congressional leaders, leery of being cast as extremists, have already distanced themselves from much of the anti-judge vitriol. According to recent polls, a majority of Americans disdains Congress's intervention into the Schiavo matter and will not support a blatant assault on the judiciary.

Verbal Attacks Can Encourage Those Who Contemplate Violence Against Judges

But even empty threats can have unfortunate consequences. Some extremists have gotten it into their heads that it's okay to threaten federal judges. (This is a separate phenomenon from the recent tragic killing of one judge and another judge's family; according to the evidence thus far revealed, those tragic incidents had no political or ideological overtones at all, except insofar as they are linked to the execrable white supremacist ideology of prison gangs.)

As Supreme Court justices Anthony Kennedy and Clarence Thomas testified this week, death threats at the Court have become an increasingly common fact of life. As a result, federal law enforcement must increasingly keep a careful eye on those unbalanced individuals whose threats have not yet risen to a criminal level, and try to locate and those whose threats have crossed the line.

Poor Judge George Greer, the state circuit court judge who presided conscientiously over the Schiavo matter for more than a decade. He has been bombarded with menacing emails containing threats of all sorts, even death threats.

When elected representatives dial up their anti-judge rhetoric, the effect is to give sustenance and comfort to those who would intimidate judges through fear. There can no excuse for comments like those of Rep. Cronyn, who appeared to excuse violence against judges but suggesting that this was the natural consequence of built-up frustration with "political decisions" by judges.

Sadly, this society has too many Eric Rudolphs for elected officials -- or anyone in public life -- to be stirring up already roiled passions. That this kind of speech is allowed by the First Amendment, hardly makes it morally acceptable.

Though the Attacks Are Wrongheaded, the Federal Judiciary Is Deeply Flawed

At the same time, however, liberals are making a serious mistake to the extent that they choose to score short-term political points against the conservatives by jumping on every criticism of the judiciary. Not every suggestion for judicial reform is an assault on judicial independence.

Although he says it in service of a mistaken agenda, DeLay is right when he says that "judicial independence does not equal judicial supremacy." From Dred Scott to Roe v. Wade to Bush v. Gore, the federal courts, and the Supreme Court in particular, have a history of overreaching their proper institutional role to settle moral and political disputes despite the fact that there is scant constitutional justification for their doing so.

Over the last nineteen years, the Rehnquist Court has displayed an especially anti-democratic streak. Using sometimes specious reasoning, and deferring to the judgment of elected officials with decreasing frequency, the justices have struck down literally dozens of federal laws, as well as much state legislation. Often the justices have done so by the margin of a single vote, thus substituting judicial judgment for that of elected representatives on the basis of a single justice's idiosyncratic point of view.

Congress and the Executive branch have every right and reason to question this muscular exercise of unreviewable governmental power, and to criticize instances of judicial overreaching. Indeed, not to question or criticize would be to abdicate (as these branches already too often do) their own role in thinking about the meaning of the Constitution and its bearing on proposed federal action. The judiciary is not the only constitutional interpreter in our system; many others also take an oath to support the Constitution, and if their own actions violate it, they betray that oath.

Like the Other Branches of Government, the Judiciary Should Be Subject to Reform

Nor should the judicial branch be immune from suggested reform. The Senate and the Presidency have both been reshaped through constitutional revision. As I and others have argued, the time has come to think about limiting the constitutional promise of lifetime judicial tenure to a long, but limited fixed term of years.

Congress should also consider additional measures to open courts to public scrutiny. Presidential papers are routinely made available to scholars, and such access is seen as indispensable to evaluating presidential performance. Why are justices given the unfettered right to preclude access to their papers and, thereby, constrict evaluation of judicial performance in perpetuity?

Such measures, of course, might be deemed incursions on judicial independence. But that is just a label. Liberals, no less than conservatives, need to be evaluating how well they think the judiciary is performing its independent function. And if they find judicial performance wanting (as I think most liberals would), they should be making responsible, non-rhetorical proposals for how the performance of the federal courts can be meaningfully improved.

Some such proposals would redound to the benefit of judges. For example, Congress should be considering raising judicial salaries in order to pay overworked federal judges in a manner commensurate with the invaluable role they play in society, and to provide incentives for top lawyers to eschew lucrative private practices for the bench.

In the end, the idea that judges should be above public scrutiny and criticism is profoundly anti-democratic and wrongheaded. On this point, liberals and conservatives really ought to agree. To oppose Tom DeLay is not to oppose judicial reform; too many liberals confuse the two stances.

Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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