The War On Judges
Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
The political bullies who have launched and maintained their despicable attack on the authority and independence of the federal judiciary finally have met their match. She is a gray-haired grandmother who likes to golf, fly fish and write. Not only is she standing up to those who seek to dominate the courts, she is likely to ultimately win the battle of ideas over the role of judges in the age of terror.
I mean, really — in the end, who would you follow? Whose vision of America do you share? The bullies — men like Rep. Tom DeLay and Sen. John Cornyn — both of Texas? Or a small, frail woman by the name of Sandra Day O'Connor, who, it turns out, happens to be a surprisingly brave and remarkably outspoken former United States Supreme Court Justice.
The Lone Star heavyweights are used to picking on feckless Democrats — that's proven to be easy — but they stand no chance against the Reagan-appointee who is a legend, literally, in her own time. And it's not just because of the image they present of two powerful and power-hungry men pushing aside a little old lady. It's because of the untenable arguments they are making. They are ugly arguments, foreign and mean, that rely for their power on base, cynical and false views of how judges judge.
Although their voices are the loudest, and for now the most powerful, Cornyn and DeLay ultimately will lose because they are on the wrong side of both history and the law. They are for fearful and weak judges, extreme legislative and executive power, and the will of the majority over protection for the minority. O'Connor, meanwhile, a former legislator herself, is on the side of the Constitution and the Bill of Rights, checks and balances, and the separation of powers.
It all started almost exactly one year ago, during the Terri Schiavo saga, when Congressional conservatives interjected themselves into a local probate matter by enacting special legislation designed to try to keep Schiavo alive. The patently unconstitutional measure was, quite rightfully, resoundingly rejected by one federal judge after another, including several conservative jurists on and off the United States Supreme Court.
If the Schiavo ruling marked a bitter defeat for DeLay, Cornyn and Co., it also marked a flashpoint over their concerted conservative push to neuter life-tenured judges that has been brewing for years, and the old-school "conservative" force of judicial restraint, which via federal judges has long protected Americans from dangerous political schemes cued up by both the right and the left.
Indeed, the GOP's blunt position in the Schiavo case didn't just fall out of the sky. The current Congressional leadership and the White House had before and have since made it a political policy choice to denigrate judges and thereby attempt to destroy both the stature and authority of the federal judiciary. They have done this by trying to take controversial issues out of range of the courts by seeking to "strip" judges of jurisdiction over, for example, the constitutionality of flag-burning and the Pledge of Allegiance. They have done this with nasty and disrespectful rhetoric.
After Rep. DeLay lost the Schiavo fight, for example, he denounced the "arrogant, out-of-control, unaccountable judiciary" and said that "the time will come for the men responsible for this to answer for their behavior." Sen. Cornyn, meanwhile, seemed to suggest a little later last year that violent attacks on judges, like the murder of the family of a federal trial judge in Chicago, were the logical result of frustration by people angry with so-called "unaccountable" judges.
The Senate Judiciary Committee nomination hearings of Samuel J. Alito, Jr. and John G. Roberts similarly rang with speeches by Republican senators criticizing "judicial activism," a silly, demagogic term even the late Chief Justice and conservative icon William H. Rehnquist decried. The movement to undermine judges, and the act and importance of judging, even has made it to South Dakota, which has on its ballot this November an initiative that would amend the state's constitution to empanel a special standing grand jury that would punish judges for making unpopular decisions. At least 40,000 South Dakotans got the measure onto the ballot, reports Bert Brandenburg of the group, Justice at Stake.
A few weeks ago, O'Connor, just weeks after stepping down from the Supreme Court, fired back at DeLay, Cornyn and all those South Dakotans. In a speech at Georgetown University, as reported by journalists who were present (the speech was not televised and no transcript of it has been released), O'Connor said "We must be ever vigilant against those who would strong-arm the judiciary," she reportedly said. "It takes a lot of degeneration before a country falls into dictatorship, but we should avoid these ends by avoiding these beginnings.
"I want you to turn your ears to these attacks," O'Connor added. "You have an obligation to speak up. … Statutes and constitutions do not protect judicial independence — people do." The effectiveness of judges, she was quoted as saying, "is premised on the notion that we won't be subject to retaliation for our judicial acts."
Those words became more poignant in light of what we now know from current Supreme Court Justice Ruth Bader Ginsburg, who reportedly told an audience in South Africa last month that both she and O'Connor received a death threat last year. Both Ginsburg and O'Connor for years have been warning of attacks on judicial independence.
DeLay and Cornyn responded to O'Connor late last week. As reported by the Dallas Morning News, DeLay said that the Stanford Law School graduate, who was third in her class, "ought to read the Constitution again" because Congress can strip the courts of jurisdiction. "We have the authority," he said." They are not an ivory tower over there. All wisdom does not reside in nine people with black robes. … I mean, they're out of control." Cornyn said that O'Connor's suggestion about the coordinated effort to intimidate judges is "clearly false" because he was once a judge. With friends like these, the judiciary doesn't need enemies, right?
The Texas pols cannot win a public pissing contest with the revered O'Connor, and it ought to tell you something about their fanaticism that they are even trying to. The American legal system of the last 220 years is O'Connor's legal system, one in which people recognize and embrace the idea of a vibrant and independent judicial branch, capable of protecting the minorities of the moment against the tyranny of passing majorities. In this America, judges are respected, even when they render unpopular decisions, because people understand that they are a bulwark against raw governmental power.
O'Connor is speaking out now — against a dictatorship she is worried about — because she more than most knows what is at stake. She knows what will happen if DeLay and Cornyn and their supporters prevail in this fight. She knows how badly the Constitution's fragile balance of power would be affected by a weak judiciary, especially during a period of great national stress. She has made a choice — and so, too, must you. There is no middle ground in this battle for the future of the federal courts. And there is no time to wait to make your voice heard, too.
By Andrew Cohen