In one of Washington’s rarest events, Justice Anthony Kennedy appeared before the Senate Judiciary Committee on Wednesday to discuss many issues involving the judiciary. Indeed, according to Sen. Leahy, it was the “first time in modern history” that a sitting justice had appeared before that committee. The subject was judicial security and independence. And I’m surprised to note that Jan Crawford Greenburg, normally a reliable voice of reason where the courts are concerned, seems to have ignored a great deal of reality in her evaluation of the event:
Kennedy would be testifying about the “continuing challenges to security and independence of the federal judiciary.”
Now, look. There’s no question “judicial security” is a serious and urgent concern. But I’m skeptical about how mere criticism of judges and their rulings somehow undermines independence, and I suggest it’s somewhat disingenuous to even mention the two concepts in the same phrase or sentence. The murder of the Chicago federal judge’s mother and husband by a disturbed man who’d been before her in a medical malpractice case is horrific and chilling. But that tragedy argues for greater security for judges, not less speech from those criticizing their opinions in controversial cases. Verbal attacks on federal judges — by congressmen or commentators or bloggers or dissenting colleagues — is something entirely different than murderous attacks by disturbed litigants.
Judges write opinions. Judges get criticized. Judges continue writing opinions, some for the rest of their lives (i.e., life tenure). It’s called democracy. I find it quite astonishing that criticism could be considered a threat to judicial independence and has been the topic of recent speeches and conferences and, now, it seemed, congressional hearings. Certainly, there have been times in our history when the Court and its justices have come under greater attack. “Impeach Earl Warren” billboards are an obvious example, but the best instance in modern history is the ad hominen attacks on Justice Thomas. Maybe someone can help me out here, but I just can’t remember any speeches or editorials raising concerns about judicial independence when the New York Times was calling him the “Youngest, Cruelest Justice” and when countless other commentators were eviscerating him for his views, which were grounded in the law. Anyone?
Though I agree with her that the attacks on Justice Thomas, virtually from the moment he was nominated, were absurd and continue to be and ought to be condemned and disproven (and her new book does an admirable job of debunking the primary Thomas myth), I think she is conflating criticism of judicial rulings – not only acceptable but proper and necessary – with threats to the independence of the judiciary. We don’t need to look far for plenty of instances of the latter, quite separate from the former.
How many instances of prominent conservatives threatening the independence of the court would you like? We can start with the multiple bills initiated in Congress over the past few years to strip jurisdiction from the courts on whatever issues – mostly church/state matters, of course – they happen to think the court has ruled wrongly on. We can talk about Rep. Steve King’s statement on the floor of the House that the DOJ should simply refuse to enforce those rulings they think are wrong.
That came on the heels of the Roy Moore situation, where he resurrected George Wallace’s false claim that the states could choose to ignore any Federal court rulings they don’t like, a situation which made Moore a hero to a large portion of the American right (though to be fair, he was also stopped by more reasonable conservatives like Judge Pryor and there are plenty of conservatives who agree that Moore is a nut). And on the heels of Tom DeLay publicly threatening to cut funds for the judiciary in retaliation for rulings he didn’t like, saying that the courts would “answer for their behavior.”
We’ve got Pat Robertson praying for God to strike down Supreme Court justices, presumably in his spare time in between sending hurricanes to Florida and plagues of locusts to Dover, Pennsylvania. We’ve seen the spectacle of one Republican Senator, himself a former judge, suggesting that there was a link between “judicial activism” and a brief rash of courtroom shootings – as if, to quote Charles Krauthammer, “courtroom gunmen are disappointed scholars who kill in the name of Borkian originalism.”
We’ve got Tony Perkins of the Family Research Council, declaring the courts the greatest threat to America, “greater than terrorist groups.” We’ve seen a litany of religious right leaders calling for the impeachment of Justice Kennedy (a Reagan appointee, for crying out loud) and one went so far as to accuse Kennedy of upholding “Marxist, Leninist, satanic principles drawn from foreign law.” We’ve seen Jim Gilchrist, head of the Minutemen and a rising star among conservatives, saying that South Dakota, after passing a harsh anti-abortion law, should “defy any legislation or any ruling against their decision.”
Add to that the fact that we have an administration in power that is absolutely crazed in its zeal to declare that the courts have no authority to even hear any case that they claim has to do with national security. Time and time again they have argued that such basic constitutional protections as habeas corpus were mere conveniences that could be done away with at the exercise of their arbitrary will, and further that no court had any authority whatsoever to question those decisions.
This goes far beyond mere criticism of judicial rulings and crosses the line into very real threats to judicial independence. Just how important did the founders believe judicial independence was? Let’s take a look at Federalist 78:
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
Hamilton was absolutely right and history bears that out in dramatic fashion.
Kennedy also spoke about the need to increase the pay scale for judges and on that I agree with him as well. He pointed out the incongruence of having law clerks fresh out of law school do their year of service at the Supreme Court under the tutelage of one of the justices and then, when they’re done, going on to private practice making more money than the justice under whom they worked. It is time to bump up the pay scale for judges to reflect the reality of the market.
He also spoke at length about a proposal in Congress to force the Supreme Court to televise oral arguments. The members of the court are unanimously opposed to the idea, arguing that the presence of cameras will detract from the seriousness of the event and will introduce public posing into them. Kennedy said:
Please senator don’t introduce into the dynamics that I have with my colleagues the temptation, the insidious temptation to think that one of my colleagues is trying to get a sound bite for the television. We don’t want that. Please don’t introduce this into our inter-collegial deliberations….We are judged by what we write in the federal reports.
And I’m generally sympathetic to this argument, for this reason: the courts are the last bastion of intellectual rigor in government, the only post in all of government where the sole currency is the quality of one’s extended and detailed argument rather than the 15-second soundbite on TV. I see no reason to diminish that by putting cameras in the courtroom. The oral arguments are already available to the public in audio form, but Kennedy is right that the courts should be judged on their written opinions rather than on the shallow standards of their TV-driven Q ratings.