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The War Against Judicial Independence

May 11, 1997|Herman Schwartz | Herman Schwartz, a professor of constitutional law at American University, is the author of "Packing the Courts: The Conservatives' Campaign to Rewrite the Constitution" (Simon & Schuster)

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.

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