The War Against Judicial Independence

WASHINGTON — Judicial independence is one of those laudable virtues that is praised on Law Day but resented when practiced. Since judges must often decide politically sensitive issues, virtually certain to displease some political interests, that resentment often erupts into politically partisan attacks.

Politically motivated criticism of the courts is nothing new. Today’s assaults are, however, more vitriolic, more determined and thus more dangerous, for they threaten to undermine judges’ independence. Also, because the strategy for going after the federal bench includes stalling the judicial-selection process itself, there are huge backlogs in many federal courts that are increasing daily.

These attacks are a reaction to the revolutionary changes of the postwar period, when minorities, women, gays and other groups began to claim the equality that the Declaration of Independence and 14th Amendment promise to all. The attacks began with the “Impeach Earl Warren” signs that sprang up all over the South after the 1954 Brown vs. Board of Education desegregation decision. Republicans realized the political value of assailing the courts during Sen. Barry M. Goldwater’s 1964 attacks on judges who were “soft on crime,” and Richard M. Nixon used both race and crime to go after the judiciary in his 1968 presidential campaign. After the fury of the reaction to the 1973 abortion decision, targeting the courts became central to Republican campaign strategy, particularly as the religious right and other conservative elements in the party became stronger.

It is thus hardly surprising that Sen. Bob Dole’s presidential campaign featured an attack on President Bill Clinton’s judicial appointments. Dole’s favorite target was a federal judge in New York who had ruled in a drug case that prosecutors could not use certain evidence because the police had seized it unconstitutionally. Though close, the decision was not unreasonable. Yet, Dole demanded that the judge resign, and soon the judge folded. In an unusual move, he reheard the case, and reversed himself.

Dole had other candidates for what he labeled Clinton’s “judicial Hall of Shame.” One was Federal Appellate Judge Martha Craig Daughtry, who had dissented from her colleagues’ refusal to hold a Tennessee state judge criminally liable under federal law for sexually assaulting female court employees, job applicants and attorneys. For this, Dole attacked her as one of Clinton’s “liberal activists.” But, in March, the U.S. Supreme Court agreed with Daughtry unanimously.

With the presidential campaign over, Congress has gotten into the act. This week, the GOP-controlled House Judiciary Committee will hold hearings on “judicial activism” and a bill to curb the federal courts. A few months ago, House Majority Whip Tom DeLay (R-Texas) called for the impeachment of federal judges who issue decisions that Congress doesn’t like. In March, he said, “articles of impeachment are being written right now” for certain judges the GOP finds objectionable. Should anyone think that for a judge to displease the GOP majority is not usually considered an impeachable offense, DeLay has asserted “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” DeLay has obviously studied communist legal practice closely.

DeLay’s bizarre suggestion has been given a sophisticated veneer by former Judge Robert H. Bork, who recently proposed a constitutional amendment to allow federal and state court decisions to be overruled by a simple majority of either house of Congress. On this one, he even lost many of his usual allies.

The DeLay and Bork proposals will go nowhere, as even they must know. Judges have lifetime tenure because, as Alexander Hamilton explained, “that inflexible and uniform adherence to the rights of the Constitution and the individual, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by temporary appointments.” DeLay’s purpose, however, is clear: to intimidate the judiciary. The New York drug-case reversal proves this can occur.

On the state level, there has been more than intimidation. Because most state judges are either elected (21 states), or must go through some form of electoral process to stay in office (38 states), they are particularly vulnerable. Californians will remember the brutal campaign against Chief Justice Rose Elizabeth Bird for her court’s capital-punishment rulings. Last year, a Tennessee Supreme Court judge was denied reelection because she had joined in one decision requiring a new hearing for someone sentenced to death; in Nebraska, supporters of term limits blocked the reelection of a judge who had ruled against the measure; in Florida, a supreme-court judge barely survived a nasty reelection campaign for dissenting from a death sentence, though she had voted to impose the death penalty in 200 other cases. Few state judges can fail to get the message.

The attempt to control the judiciary includes not only after-the-fact reprisals but also who goes on the bench. Federal judges are subject to Senate confirmation. Throughout U.S. history, the Senate has usually confirmed a president’s nominees routinely, particularly for lower federal courts. President Ronald Reagan relied on this tradition to appoint extremely conservative judges like Antonin Scalia. Since the Republicans lost the White House, but now control the Senate, they have decided to use their advise-and-consent power to block whoever doesn’t have the proper ideology.

The strategy is two-pronged: First, to slow the nomination process; then to veto ideologically unacceptable nominees.

One delaying tactic has been to impose ever-more onerous informational requirements. Last year a woman nominee for a California judgeship was approved by the Judiciary Committee but the Senate did not vote on it because of the GOP’s delaying tactics. Although she satisfactorily answered everything initially asked of her, many more questions are now being posed. A revealing example is a request for “your views in support or in opposition to California initiatives in the last decade”--all 160 of them!

As a result of this and other tactics, the Senate confirmed, in 1996, just 17 district judges and no appellate judges; this year, only two judges have gotten through. Today, 99 federal judgeships are vacant, 23 considered “judicial emergencies.”

Schemes to block ideologically impure nominees, the other part of the strategy, are also being hatched. Sen. Phil Gramm (R-Texas) recently proposed that the Judiciary Committee reject any circuit-court nominee opposed by GOP senators from that circuit. The Republican Caucus rejected this, primarily because it encroached on the power of committee chairmen. The caucus did, however, resolve to give “strict scrutiny” to nominees to weed out “activist” judges.

The “activist” label is, of course, just a dirty word for judges who issue decisions that Gramm and his friends don’t like. The most activist Supreme Court judges today are conservatives and their allies on the lower courts; the more liberal members are just trying to hold on to what has already been gained. Chief Justice William H. Rehnquist and his allies have struck down hundreds of federal, state and locally adopted affirmative-action plans, as well as scores of congressional statutes on crime, religion, fair-labor standards, gun control and legislative-executive relations. Scalia not only wanted to strike down the independent-counsel law, but he has often expressed his contempt for legislators and the legislative process.

All judges faced with hard constitutional and legal questions are activist. They must be if the law is to offer guidelines for a changing society.

Ironically, the stepped-up conservative attacks on the federal judiciary come when it seems least necessary. The federal judiciary is dominated by Reagan-Bush appointees and Clinton has never been willing to risk political capital on judges--even those he can probably win.

Criticizing the performance of the courts is justified and indeed necessary. Partisan attacks that undermine their independence are not, for without an independent judiciary neither the rule of law nor liberty itself can long survive.