Violence Against Judges: Why it Occurs and What We Can Learn from it

By MATTHEW SEGAL

Monday, Apr. 25, 2005

Recently, hatred against judges has even resulted in violence--from disgruntled defendants and convicts. On April 6, white supremacist Matthew Hale was sentenced to 40 years' imprisonment for soliciting the murder of federal judge Joan Lefkow--the same judge whose husband and mother were recently killed by someone else. And rape defendant Brian Nichols now stands accused of killing a Georgia Superior Court judge and three others in connection with his March escape from an Atlanta courthouse.

It may be a stretch to connect the criticism of controversial decisions with the violence that has occurred, or may occur in the future--but some Republicans have done so. For instance, Senator John Cornyn said recently that "raw political or ideological decisions" could help to explain this violence. He implied that Congressional intervention in judicial decisionmaking was necessary in order to forestall additional violence.

Meanwhile, House Majority Leader Tom DeLay ominously remarked, referring to the judges who declined to prohibit the removal of Terry Schiavo's feeding tube, "The time will come for the men responsible for this to answer for their behavior." Senator Frank Lautenberg felt so strongly about this comment that he wrote DeLay a letter stating that DeLay's comments "may violate a Federal criminal statute" prohibiting threats against federal judges.

How can we protect our judges from violence? Answering this question is more difficult than it might seem--and simply hiring more U.S. Marshals, while a good idea, doesn't address why judges are threatened. Tragically, our system may preclude perfect--or near-perfect--protection of our judges.

That is because, in our system, as I will explain, the judiciary is designed to shoulder blame--and for reasons having nothing to do with the quality of judges' decisions. That makes it all the harder to protect judges who incur hatred.

Judges Are Supposed to Shoulder Blame--and, In Our System, Cannot Avoid It

Judges are unlike other public officials, for they often decide cases alone. Unlike statutes, which are passed by multi-member legislatures and signed by executives, judicial decisions can be the product of a single mind. Thus, blame for a decision can be easily assigned to its author. Laws simply seem less personal than actions by particular public officials.

Someone angry about a law blames Congress. Someone angry about an election result blames the voters. (For Kerry voters, ask yourselves whether you can be any angrier with President Bush than you are with your neighbor who voted for him.) Someone angry with a judicial decision blames the judge (or judges).

For a judge, there is nowhere to hide from responsibility. Even a bill's sponsor can avoid responsibility by claiming that later amendments distorted his intention. And a legislator can excuse an unpopular vote by citing financial necessity, political realities, or the like.

Even Presidents can cite a mandate from voters--and be voted out in four years. Indeed, democracies deter assassinations precisely because their leaders are only moderately powerful and eminently replaceable. If a President is assassinated, he may only be replaced by a like-minded Vice President.

But judges cannot cite a mandate, or shift blame.

Even if a judge serves on a panel--say, a typical three-judge federal appellate panel--blame is still easy to apportion. Indeed, the tradition of allowing dissenting opinions (by those judges on the losing side of a panel vote) provides ready-made, articulate reasons for placing blame on the majority.

No wonder, then, that the U.S. Supreme Court has striven to make its most controversial decisions--including Brown v. Board of Education--unanimous ones.

Federal Judges: The Link between Independence and Responsibility

Some state judges are elected--and thus can simply be voted out of office. But according to the U.S. Constitution federal judges are appointed for life (and their salaries have a permanent "floor"--Congress can raise them, but not lower them). In this sense, they are untouchable.

There's a good reason for these constitutional guarantees of judicial independence: They prime judges to make independent decisions, for judges who serve for life at a fixed salary need not cater to voters--nor even to the President who nominated them, or the Senate that confirmed them. But it also sets up judges to take the heat for hot-button issues.

Judges' Role: Narrowing Legislative Debates By Setting Their Parameters

By taking so much blame, the judiciary helps the rest of our democracy to function more cooperatively. As Yale Law School Professor Jack Balkin explained in a 2003 New York Times Op Ed, "by narrowing what legislatures can fight over in especially divisive areas . . . courts actually help working majorities form."

Take Roe v. Wade--and the 1992 decision, Planned Parenthood v. Casey, in which the Supreme Court reaffirmed Roe. These decisions frustrated Republicans by largely taking abortion rights out of politicians' hands. (Though abortion debates remain--regarding so-called "partial birth" abortion and parental consent requirements, for example--the fundamental question of abortion's availability has been settled on a nationwide basis.)

Yet at the same time, these decisions, in a sense, help the GOP by ensuring that its platform doesn't focus exclusively on abortion. As Professor Balkin has explained, because of Roe, the GOP is "not just the party of the religious right, but also the party of lower taxes and strong national defense." With abortion rights shunted to the sidelines by the courts, other issues can come to the fore.

The recent firestorm over Terry Schiavo provides another example of how the courts can function as a lightning rod for blame--to the legislature's benefit. First, a twelve-year-long litigation in Florida state court took some of the pressure off Florida legislatures and the Florida Governor. Then, with Terri's Law, Congress cleverly gave federal courts the final say on whether Schiavo's feeding tube would be removed. Now it is largely those courts--and their judges--that are taking the heat for not ordering the re-insertion of the feeding tube.

That seems unfair to many, and perhaps rightly so--as Edward Lazarus has argued in a column for this site, Terri's Law put the federal courts in a position where they had no basis for ordering the re-insertion of Schiavo's feeding tube, so that their decision was, in essence, foreordained.

But the alternative to judicially-provided closure is probably a system in which the federal government grinds to a halt while politicians debate or demagogue hot-button issues--while ignoring issues that are more pedestrian, but still vital.

Judges know they do our democracy a service by deciding cases that are bound to cause anger. At the April House Appropriations subcommittee hearing, Justice Thomas explained that judges "are supposed to be criticized and . . . take the heat sometimes for cases that are controversial."

And politicians are happy to take advantage of this service, though they do so in different ways. Some pile on. Representative DeLay passed his political hot potato to federal judges and then chastised them after they took it.

Other politicians take a less aggressive approach. For instance, during a recent convention of American newspaper editors, President Bush was asked to comment on the cases involving New York Times investigative reporter Judith Miller and Time correspondent Matthew Cooper. (Miller and Cooper may face jail for their refuse to appear before the grand jury in the Special Counsel investigation of a leak of a CIA agent's identity to columnist Robert Novak). President Bush replied, "Why don't we let the courts decide?" And he added, "You think I'm going there, you're crazy."

Our Political Structure Puts Judges in Danger

Thus, having judges function as lightning rods is often a good thing for our democracy. Yet as recent events have shown, it can be a very bad thing for judges themselves.

Not only are judges inevitably blamed for controversial decisions--no matter which way those decisions go--but litigants and defendants often take judging personally, responding with anger and sometimes violence. Judges are prime targets of personal anger and disaffection, not because of the quality of their decisions but because of the structure of our democracy: They have no one to whom they can shift, or with whom they can share, blame.

How can we protect judges? One way to make judges safer would be to limit their authority or independence. But doing so would reduce the benefits of having an independent judiciary, including the benefits that accrue to other public officials when judges take the heat for contentious issues.

Translating this Lesson to the Global Context: The Need for Multilateralism

Interestingly, although our system is adept at dispersing blame away from politicians, and onto judges, we have failed to learn its lesson internationally.

For example, America continues to oppose the International Criminal Court and other international legal institutions. Yet if America were to accept the authority of international courts, and act within the parameters of their legal regimes, global opinion might place blame with the courts--not with America.

Like a domestic legislature, the U.N. can serve as a mechanism to disperse blame. There, global decisions--and mistakes--are made collectively, without an obvious hero or villain. (Even among Security Council powers, collective action by multiple powers, which at least disperses blame to some extent, is possible. So is abstention from a particularly controversial vote.)

But America seems determined to be a lightning rod for blame (and thus for violence). The U.S.--and its increasingly smaller coalition--notoriously bypassed and defied the U.N. in initiating the Iraq War. And now President Bush has nominated John Bolton, a harsh critic of the U.N. and defender of America's global prerogatives, to be America's next U.N. ambassador.

With these actions, America has only underlined that it is willfully acting alone--and thus has made itself a magnet for opposition ranging from criticism to violence. Of course, this dynamic does not at all justify violence; far from. But, as is true with judges, acting alone does make violence more likely.

As America's foreign policy defenders often point out, the United States cannot please everyone. Nor can federal judges. Maybe it's time to ask whether acting alone, without any political accountability, makes as much sense for America as it does for our judges.

To be sure, deferring to the UN would mean reducing America's geopolitical clout. Conspicuously criticizing the UN--as Mr. Bolton has done in the past--or conspicuously leading it--as he has recently promised to do--won't do the trick. Instead, America must share decisionmaking responsibility with other nations.

For the world's only superpower, this would be a significant sacrifice. But that sacrifice might be worthwhile if it keeps America from remaining the world's lightning rod.

The perfect system for protecting our federal judges may remain out of reach for a good reason: Their independence comes with a cost. But a better system for protecting America is well within our grasp: It's called multilateralism.


Matthew Segal is an attorney at Goodwin Procter LLP in Washington, DC. The opinions expressed in this column are his alone. His email address is [email protected]

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