Lady Justice Rises

Legal Analyst Andrew Cohen Says O'Connor Fighting The Good Fight

(CBS)  There are many topics she might have chosen to speak upon at a time when attention is most closely focused upon her. She has chosen this one. It is that vital. It is more important than any other single topic you are likely to hear about between now and October because a strong federal judiciary is the foundation upon which all those other issues and choices and decisions are based. We make fun of the legal systems in other countries when their judges seem timid and meek. And yet that is precisely what O'Connor is warning us about after a generation of work on the High Court. If we don't listen to her, to whom should we listen?

Madame Justice is speaking out to you and me while we still are willing to pay attention to her. She is speaking out before her successor is confirmed, speaking out in the hope that this issue will be addressed during the long run-up to the Roberts confirmation hearing. She is speaking out so that one senator, or maybe two, will make the "Have you left no sense of decency, sir?" speech that might serve to end this nonsense once and for all (or at least for the time being). If the issue of the Congressional sabotage of the federal judiciary gets one-tenth of the attention that the issue of abortion rights receives between now and Roberts' first day at the hearing, it will be a pleasant surprise; a horrible shame but a pleasant surprise.

The not-so-secret cabal against the Constitution of which Justice O'Connor speaks probably reached its nadir earlier this year during the tail end of the Terri Schiavo drama when House Majority Leader Tom DeLay (R-Texas) threatened judges, saying "the time will come for the men responsible for this to answer for their behavior." Their (the judges') behavior, remember, was to thwart an extralegal attempt by Congress to interject itself into a family law dispute in Florida that had been fully adjudicated.

According to DeLay and his some of his odious colleagues, "an arrogant, out of control, unaccountable judiciary" was ultimately responsible for Schiavo's demise. It's just one small step from that skewed logic to calling judges outright "murderers." And, indeed, one of the men who will be passing judgment on nominee Roberts, Sen. John Cornyn (R-Texas), wondered aloud this spring if there were "a cause-and-effect connection" between "some recent episodes of courthouse violence in this country" and "the perception in some quarters, on some occasions, where judges are making political decisions yet are unaccountable to the public."