Dispatches from the Creation Wars

Justice Kennedy and Judicial Independence

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.

Comments

  1. #1 Jim Babka
    February 16, 2007

    Moore failed completely. Rep. King’s advice wasn’t followed by DOJ. DeLay’s threat was hollow (how often do politicians cut funding for anything?) and now he’s gone. Gilchrist’s advice hasn’t been (and won’t be) followed. You yourself point up Pat Robertson’s silliness and ineffectiveness . He’s a straw man. Is anyone here scared of his prayers? Perkins wasn’t successful in getting an impeach Kennedy movement going (full of hot air).

    I’m going to have to go with Greenburg on this one. Every one of the examples you cite are really no more metaphysically heavy than her “verbal attacks.”

    What’s worse is that the Court frequently finds a way to rule in favor of a given President’s requests. Even in “victories,” when the case involves State power, the Court generally gives the Statists who inhabit the Executive and Legislative branches, inches and yards (ground is lost). Our consolation is found in the words, “It could’ve been worse.”

    Which brings up important questions… How are the Courts held accountable in a system where we trust not men, but laws? What is their “check and balance?” When they determine that, for example, “the commerce clause,” gives the Congress power to regulate virtually anything, or that they have a right to restrict First Amendment rights because of a “compelling state interest,” to where do “We the People” turn?

    Sure Ed, they are the best of the three branches. Conservatives are hypocrites and their modes of interpretation are inconsistent. But are we required to accept, quietly no less, when Judges and Justices participate in the trampling upon our rights? Have we no recourse? Is it an evil to merely suggest that a Judge or Justice should be removed?

  2. #2 Ed Brayton
    February 16, 2007

    Jim Babka wrote:

    I’m going to have to go with Greenburg on this one. Every one of the examples you cite are really no more metaphysically heavy than her “verbal attacks.”

    I think when it reaches the point where there are multiple pieces of legislation submitted for jurisdiction stripping, it’s gone beyond just being criticism. I’m all for criticism of judicial rulings; I engage in such criticism all the time. I agree that we shouldn’t overstate the situation, and I specifically noted, for example, that while Moore is a hero to one segment of the right, mainstream conservatives rejected his arguments completely and led the fight to remove him from office. But we also shouldn’t dismiss all of this as just routine criticism of judges. There is a sizable portion of the politically active who really do believe that the courts can be ignored whenever they happen to think the courts are wrong, and who also believe that they should be able to remove judges from office, or strip them of their authority, if they rule in a way they don’t like. That is a dangerous idea, and it goes far beyond mere criticism.

    What’s worse is that the Court frequently finds a way to rule in favor of a given President’s requests. Even in “victories,” when the case involves State power, the Court generally gives the Statists who inhabit the Executive and Legislative branches, inches and yards (ground is lost). Our consolation is found in the words, “It could’ve been worse.”

    Which is really saying nothing more than “sometimes courts get it wrong.” But the reality is that the courts have been the only effective restraint on the growth of governmental power far beyond its constitutional limits. I certainly agree that the courts could do far more in that regard, but we could sit here all day and list the cases where the courts have prevented a power grab by the legislatures (Federal and state) and the executive branch. Imagine what the nation would be like without court rulings upholding the right of habeas corpus or preventing the government from engaging in prior restraint.

    Which brings up important questions… How are the Courts held accountable in a system where we trust not men, but laws? What is their “check and balance?” When they determine that, for example, “the commerce clause,” gives the Congress power to regulate virtually anything, or that they have a right to restrict First Amendment rights because of a “compelling state interest,” to where do “We the People” turn?

    To the amendment process, of course. Amendments aren’t easy, and they weren’t intended to be, but ultimate authority rests with the people and their ability to amend the constitution. And there are times when it does not require going that far. Witness what has happened in the wake of Kelo, where there has been a national movement in almost every state to put limits on eminent domain takings that the Supreme Court wrongly refused to put in place. But the ultimate answer to why, for example, nothing has ever been done about the abstraction of the commerce clause, is quite simple: the people like it that way. Like it or not, the public has never been convinced to see things our way on that question. That just means there’s more work to do, work that I gladly note you do admirably in many ways.

  3. #3 KeithB
    February 16, 2007

    Or in the case of malfeasance, there is impeachment:

    http://www.straightdope.com/columns/070209.html

  4. #4 James
    February 17, 2007

    One question from a bewildered foreigner:

    Isn’t the jurisdiction of the Supreme Court set out int he Constitution? If so then how would a jurisdiction-stripping bill work? Wouldn’t the Supreme Court just strike it down?

    I suppose you could strip jurisdiction from lower courts, but that would just guarantee it would fall to the Supreme Court, wouldn’t it?

  5. #5 TomMil
    February 17, 2007

    While I agree that Clarence Thomas is misrepresented by those who consider him to be intellectually unqualified to be a Supreme Court Justice, I still think he should not be on the Court. Back when the Clinton impeachment proceedings were going on, the main thrust of the right wing attack on the President was that he committed perjury. I used to say, “Well judging by the standard set in the Clarence Thomas confirmation hearings, that should qualify Clinton for the Supreme Court.” I don’t think any honest inquiry into his testimony before the Senate could come to any other conclusion.

    He testified, “Senator, your question to me was did I debate the contents of Roe v. Wade, the outcome in Roe v. Wade, do I have this day an opinion, a personal opinion on the outcome in Roe v. Wade; and my answer to you is that I do not.”

    This was a lie about a material fact, under oath. The very definition of Perjury.

    “Thomas also strongly endorsed a right to life for the unborn, a view which [Reagan Assistant Attorney General William Bradford] Reynolds shared. The two discussed Roe v. Wade, the landmark abortion rights case. Reynolds said, ‘I know we discussed it. I think that he thought little of Roe v. Wade. … [F]rom a scholarly standpoint, we were talking about constitutional law, constitutional issues, and Supreme Court decisions. It was clear he didn’t think much of it.’ “–Clarence Thomas: A Biography by Andrew Peyton Thomas,p.246

    and;

    “Thomas limned a similar philosophy in his talks with Armstrong Williams. They discussed Roe v. Wade, which both of them opposed. ‘He would also talk about where the Supreme Court would’ve erred on some of these decisions,’ said Williams. ‘He thought they weren’t interpreting the Constitution but trying to make law. And that’s not the proper role for a judge.’ “ –Clarence Thomas: A Biography by Andrew Peyton Thomas, p.247.

    How is this not perjury? His defenders rely upon the most cramped definition of “debate” possible, and they don’t even address his claimed lack of “a personal opinion on the outcome…” Does any rational person believe he did not have such a personal opinion? Frankly, I believe it’s tautological. If you believe he had no personal opinion, you cannot also be rational.

  6. #6 TomMil
    February 17, 2007

    My previous post may be off topic but the current movement to rehabilitate the reputation of Clarence Thomas seems to leave out the things I discussed as well as the support for Anita Hill’s version of the events at the EEOC that surfaced after he was confirmed. I’m sorry but it really pisses me off.

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