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Lady Justice Rises

Attorney Andrew Cohen analyzes legal issues for CBS News and
United States Supreme Court Associate Justice Sandra Day O'Connor refuses to go gently into the night. Late last week, while her political friends were rallying around her heir apparent, she said something as important as anything she had said while sitting on the High Court for nearly a quarter of a century. She loudly and passionately called out the Republican leadership in Congress for its cynical, sinister, and relentless assault upon the independence of the federal judiciary.

In some of the frankest tones you will ever hear from a sitting Justice, O'Connor, the Reagan appointee, gray-haired grandmother, and symbol of middle-American courtliness, blasted the very people on Capitol Hill who are cheering the loudest these days for John G. Roberts, Jr., the man who will almost certainly take over her consistently conservative vote from the bench on the first Monday in October. Speaking in Spokane, Wash., to a group of lawyers and judges, O'Connor warned that "the present climate is such that I worry about the future of the federal judiciary ... In our country today, we're seeing efforts to prevent an independent judiciary."

Click here to hear CBS News Correspondent Stephan Kaufman's report on O'Connor's speech.

The "climate" and "efforts" she mentioned are actually the concerted, focused, and malevolent political campaign by conservative leaders to try to diminish the authority — and ultimately the power — of judges across the country. O'Connor gets it. From her lofty perch, she saw that the current wave of nasty criticism of judges is different in scope and substance from previous complaints about the judiciary we've seen crop up in this country over the years. She sees how dangerous that is — how manipulative and antithetical to the healthy separation of power upon which our government is based. This isn't some hack commentator like me decrying the blatant legislative power grab — this comes from one of the most revered Supreme Court justices of her generation — and a staunchly loyal Republican to boot.
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.

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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."

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?

Of course we know the answer. They want "Justice" Roberts to be deferential to the executive branch, not just on the little issues that move along the law incrementally but on the big issues that shake up the world. They want him to help oversee the further diminishment of judicial power; they want him to go further than Republican justices Souter, Kennedy and O'Connor were willing to go in ceding the field to the other two branches. Congress and the White House, in Republican hands, want the third branch to go along with the program and are willing to subvert the reputation and standing — and ultimately the authority and sweep — of the robed men and women who are sworn to uphold the Constitution even when that means making unpopular decisions.

Will Roberts go along? Will he pick up the mantle being left him by his predecessor and take advantage of his brief time in front of the cameras to similarly decry the attacks on judges? Will he show himself from the get-go to be his own man, a stand-up guy? Will he tell his friends and supporters in Congress to back off and leave the judiciary be? Or will he meekly take his lumps try to defuse the issue. To me, more than abortion rights or same-sex marriage or even the fight over how best to interpret the Constitution, how Roberts handles the issue of judicial independence will be his first true test of preeminent justice.

Justice O'Connor has spoken. She speaks for hundreds, perhaps thousands of other judges around the country. She speaks for a system of government where one branch cannot bully another. She speaks for a balance of power that is needed more in a time of war than in a time of peace. She speaks for Hamilton and Madison and Washington. She speaks as a Republican, a former legislator, and the first woman ever to sit on the High Court. She speaks for history and to history. She speaks to her successor and to his successor, and the only question now is whether our Congressional leaders can stop howling at the moon long enough so they can hear her.

By Andrew Cohen
By Andrew Cohen

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