Lady Justice Rises

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

(CBS)  Meanwhile, Senate Majority Leader Bill Frist (R-Tenn.) also has been a vocal and consistent critic of the judiciary. And it's not just elected officials. Conservative icon Phyllis Schlafly suggested earlier this year that Justice Anthony Kennedy's vote to forbid capital punishment for juvenile murderers "is a good ground of impeachment." The Washington Post reported that another right-wing voice, Edwin Vieira, told the same gathering that Kennedy's vote a few terms ago to strike down a Texas anti-sodomy statute "upholds Marxist, Leninist, satanic principles drawn from foreign law." Kennedy, remember, like O'Connor, is an appointee of the late Ronald Reagan.

It goes on and on. The galling campaign is loud and relentless because its success depends upon conditioning you and your neighbor to accept the false conclusion that unpopular decisions by judges are necessarily unconstitutional decisions by judges. Under this phony-baloney logic, federal judges refused to come to Terri Schiavo's rescue because they wanted to promote some hidden assisted-suicide agenda — not because, as was the case, the federal courts simply don't overrule state court rulings dealing with state law matters. What about "judicial activism," the darling slogan for the cause? "Judicial activism — whatever that means," O'Connor said bluntly and aptly last week. She knows that there is simply no such thing as an "activist" judge, that judges "act" no matter what they decide or even if they choose not to decide.

Justice O'Connor wants you to know — to remember actually — that "a key concept of the rule of law is the concept of an independent judiciary." A strong judicial branch is necessary to ensure that the tyranny of the majority is limited — so that things don't "get out of kilter," is how she puts it. She worries that Congress is going to continue to try to take jurisdiction away from the courts in whole classes of disputes in order to relegate the Bench even further to the sidelines. This is a woman, remember, who was a legislator before she became a judge. "In all my years of my life," O'Connor said last week, "I don't think I've ever seen relations as strained as they are now." Strained is putting it nicely. Poisoned is a word I might use.

So what is Congress going to do about it? And is this topic even going to come up over the next few weeks leading up to the confirmation hearing for Judge Roberts? The irony abounds. Many of the same senators who want to rein in the power and authority of judges want to get all snuggly with Judge Roberts. The same titans of the right who have stirred up with irresponsible hyperbole anger and resentment for the prestige of the bench now all of sudden wish everyone could be Roberts' friend and neighbor. Do his most ardent supporters in the Senate want the president's nominee to be a lap dog to politicians or do they want him to assert his rightful independence from the gang that got him to the bench?