The Race To The Bottom

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

When Congress cannot agree upon clear, decisive language in its legislation, when it cannot resolve the toughest questions behind important issues, it uses fuzzy-wuzzy words like "reasonable" in its laws and them dumps those laws, with their intentional ambiguities, into the laps of judges to make sense of it all. That's why there is so much litigation in this country and why judges often feel the heat that more accurately ought to be directed at the politicians, who, after all, failed to do what their constituents pay them to do. Guess what? Congress did the very same thing Monday night when Senate moderates reached their so-called historical accord.

Saying in a memo of understanding that there will be no filibuster unless "extraordinary circumstances" exist is like saying in legislation that Congress wants to outlaw pollution when it is "reasonable" to do so. "Extraordinary circumstances," of course, will mean very different things to very different senators and once a dispute arises over what constitutes "extraordinary circumstances" – say, when President Bush nominates a controversial pick to replace U.S. Supreme Court Chief Justice William Rehnquist – we will all likely be back to where we were until Monday evening. In other words, legislators who make careers from weaseling out of tough choices weaseled out of a tough choice involving the rules of their very own body.

And by forestalling the showdown over the federal judiciary, the Senate ensured, even encouraged, many more months or years of vitriol toward judges. We are now at the nadir of a cycle in American history wherein the rule of judges has been politicized almost to the point of no return. It is not difficult to see how we got here. In fact, it is a surprise that it took so long for Congress and the White House to drag the judiciary down into the mud. Call it "Defining Article III Downward." Or call it a race to the bottom. Whatever you call it, it is a terrible thing when individual judges or the federal judiciary as a whole get demonized for doing no more and no less than what the Constitution requires. The current cycle of politicizing judges (or "legalizing politics," if you prefer) began in earnest during the Clinton impeachment drama when politicians of both parties used the mantra "the rule of law" to support their own particular positions. The rhetoric rose (or sunk) to a new level during the Florida recount fight when supreme power in the land was decided by a single vote along partisan lines. The meshing of law and politics lingered during the 2004 presidential election and it flared again during the Terri Schiavo case this spring. Every controversial ruling, it seems, gets characterized as political, whether it warrants the title or not. There was nothing political about the Schiavo case, for example, until Florida Gov. Jeb Bush and the Republican leaders in the House of Representatives decided it was a "culture of life" sort of a case and got involved.

This cycle has happened before in American legal history and it no doubt will happen again. Republican politicians have been trashing judges for years and years (like Democratic politicians did when the judiciary was conservative in the 1930s). And Democratic politicians haven't exactly gone easy on some of the president's current crop of nominees although, to their credit, the Dems have mostly complained about those nominees being outside of the judicial mainstream as opposed to traitors to the Constitution and the country. The assault on the credibility of and respect for judges is as intense and as dangerous as it has been in a long, long time.

Don't believe me? Ask U.S. Distict Judge Joan H. Lefkow, whose husband and mother were brutally murdered in February by a man who had come to her home to assassinate her. Lefkow called upon the Senate Judiciary Committee last week to "publicly and persistently repudiate gratuitous attacks on the judiciary.... We need your help in tempering the tone of the debates," she told the panel. What sort of tone? Take televangelist Pat Robertson. He said on television recently that certain judges "are destroying the fabric that holds our nation together. Over 100 years, I think the gradual erosion of the consensus that's held our country together is probably more serious than a few bearded terrorists who fly into buildings."

Judge Lefkow did not have to author a controversial ruling to warn that "fostering disrespect for judges can only encourage those that are on the edge." But Massachusetts Supreme Judicial Court Chief Justice Margaret Marshall, who did write the most controversial judicial ruling we've seen in a long time, also recognizes the gravity of the problem. The author of the state's ruling legalizing same-sex marriage said Sunday that she worries "when people of influence use vague, loaded terms like 'judicial activist' to skew public debate or to intimidate judges... I worry when judicial independence is seen as a problem to be solved and not a value to be cherished."

In the Book of Judges, God routinely "raised up" judges who did right by his word and acted with mercy even when his people did not particularly deserve it. For voting into Congress the current batch of angry, bitter, cynical pols, and for tolerating Robertson's linkage of judges with the 9-11 hijackers, the American people do not particularly deserve these days to have an independent judiciary protecting them against the excesses of the other two branches. God may or may not "raise up" our federal judges, but that doesn't mean the rest of us ought to be dragging them down. You probably won't find much support for that proposition in the Bible. But you certainly will in the Constitution.