July 05
President's Corner
Attacks on the Judiciary — Living in Bizarro World
A Call to Action to Render the Service of Maintaining the Judiciary as a Separate, Independent, Coequal Third Branch
of Government
by Ron Ward, WSBA President
The Demogogic Din, Hue, and Cry
Federal judges are a more serious threat to America than Al Qaeda and the Sept. 11 terrorists, the Rev. Pat Robertson claimed yesterday.
"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," Robertson said on ABC's "This Week with George Stephanopoulos."
"I think we have controlled Al Qaeda," the 700 Club host said, but warned of "erosion at home" and said judges were creating a "tyranny of oligarchy."
Confronted by Stephanopoulos on his claims that an out-of-control liberal judiciary is the worst threat America has faced in 400 years — worse than Nazi Germany, Japan and the Civil War — Robertson didn't back down.
"Yes, I really believe that," he said. "I think they are destroying the fabric that holds our nation together."1
Senator John Cornyn argued that recent courthouse violence might be explained by distress about judges who "are making political decisions yet are unaccountable to the public." The frustration "builds up and builds up to the point where some people engage in violence," said Mr. Cornyn, a former member of the Texas Supreme Court who is on the Senate Judicary Committeee, which supposedly protects the Constitution and the guarantee of an independent judiciary.2
Senator Cornyn's comments were made in the aftermath of displeasure over the courts' refusal to restore a feeding tube to Terri Schiavo, the brain-damaged Floridian who died March 31, and just days after the House Majority Leader, Tom DeLay, declared that:
"We will look at an arrogant, out of control, unaccountable judiciary that thumbed their nose at the Congress and president when given jurisdiction to hear this case anew and look at all the facts . . . .The time will come for the men responsible for this to answer for their behavior, but not today." 3
The Washington Post reported that plans are afoot to use budgetary, oversight, and disciplinary authority to assert greater control over the federal courts before next year's elections. The planned legislative review was ordered by House Majority Leader Tom DeLay, R-Texas. House Judiciary Committee Chairman James Sensenbrenner, R-Wis., opened the drive by suggesting that Congress should create an inspector general for the courts to field complaints and conduct investigations. He also indicated that he would be very active in seeking to curb the judiciary, starting with passage of a tougher disciplinary mechanism for judges.4
It was reported that strategies are being laid out to rein in judges, such as stripping funding from their courts in an effort to hinder their work. Tony Perkins, president of the conservative Family Research Council, stated:
"There's more than one way to skin a cat, and there's more than one way to take a black robe off the bench.". . . Congress could use the appropriations authority to "just take away the bench, all of his staff, and he's just sitting out there with nothing to do."5
Bizarro World
When I was a kid, I read D.C. comics, which featured Superman. Superman was a way-cool, all-powerful superhero who was a force for good on planet Earth. His only weakness was to a green mineral element called kryptonite from his own original home world of Krypton. Kryptonite was derived from his own origins, and it alone could kill him.
One of Superman's foremost enemies, and his nemesis, was Bizarro, product of the parallel dimension and diametrically opposite-to-Earth Bizarro World, analogous to a scientific experiment gone horribly bad. Bizarro and everything in his world was upside down, relied on complete and total control of the inhabitants, was antithetical to ordered principles, and ultimately was destructive to any semblance of balance or order, as was existent on Earth. After nearly killing Superman and destroying Earth, Bizarro and Bizarro World could no longer sustain their own contradictions. Bizarro World imploded and succumbed (at least in one version I read).
With the current demonization and out-of-control attacks on the judiciary and the justice system, when you as a lawyer, or judge, or legal academician read stuff such as is set forth above, do you feel these days (as I often do) that we're somehow living in Bizarro World? Do you fear (as I do) that excesses in the very system of democracy derived from our own origins will prove to be the instrument of our demise?
When we talk about maintaining the independence of the judiciary, this is not about Republicans and Democrats. It is about retaining the unique system of checks and balances of the American republic and the preservation of democracy. That cannot continue if the judiciary becomes merely an ideological rubber stamp for the executive and legislative branches of government, as some seem to so avidly desire.
"Dangerous" does not begin to describe the remarks set forth above, nor the gravity of the phenomenon they represent. They're just wrong. They involve thumbing of political noses at the separation of powers, and the suggestion that the Supreme Court be an enforcer of political decisions made by elected representatives of the people, no matter how intrusive to privacy or other basic freedoms. Avoiding that nightmare is precisely why the founders made federal judgeships lifetime jobs and created a nomination process that requires presidents to seek bipartisan support. These kinds of irresponsible and dangerous falsehoods have no place in mature political discourse. This is not a matter of an attack on federal judges, but on all judges at every level of our system, and on the separation of powers that undergirds democracy itself.
The need to shield judges from outside threats is a priceless principle of our democracy. It is sickening that any public or elected official would give succor to sociopaths and psychopaths such as those involved in the recent murder of court personnel and an Atlanta judge in his courtroom, by a career criminal seeking to shoot his way out of a trial, and the execution of a Chicago judge's mother and husband by a deranged man furious that she had dismissed his lawsuit.
The existence of those who are attempting to capitalize on tragedy and further increase the cultural divide in our country is a repulsive fact of contemporary life. Attacks on the judiciary and movements to radically modify the operation of the rule of law and our time-tested system of justice will ultimately benefit no one and will likely cause serious harm. We are a country of laws and must be so to survive. Our Constitution and the rule of law, including the doctrine of separation of powers, have served us well over the past two and a half centuries and are the primary reasons our country is so great.
What Is Judicial Independence?
Judicial independence means that judges can decide cases before them without fear or favor, based on the law and the facts of each particular case. It's a way to provide for fair and impartial courts. Judicial independence does not mean that judges are free to decide cases according to their own whims or prejudices. It means that judges have the authority to exercise their constitutional obligation to make hard decisions, unpopular decisions, without concern for personal or professional retribution.
Independent Courts and Democracy
Our democracy depends on independent courts where decisions are based on the facts and the rule of law. John Marshall's address to the Virginia Convention of 1830 includes a stern warning about the failure to ensure an independent judiciary:
I have always thought, from my earliest youth till now that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and sinning people, was an ignorant, a corrupt, or a dependent Judiciary. 6
An impartial judiciary is a cornerstone of our democracy, one of the guiding principles that sets us apart from other nations of the world. Indeed, when visitors from developing democracies come to the United States, they come to learn about and draw on our judicial system, not our executive or legislative branch models.
How Is Judicial Independence Threatened?
Interest groups and political parties are pouring millions of dollars into targeted judicial campaigns, using highly negative advertising to influence voters and outspending the judicial candidates themselves.
The problems go beyond judicial elections:
State legislatures cut budgets for the courts while caseloads continue to increase, threatening the institutional independence of courts by placing more pressure on judges to decide more cases with fewer resources.
In many jurisdictions, compensation is an issue. There is a growing disparity between private practice and the judiciary. Some beginning lawyers make more than experienced judges do, while judicial salaries fail even to keep pace with inflation. Successful lawyers are reluctant to give up lucrative law practices to serve on the bench.
In most states, women and people of color remain underrepresented on the bench. Minority lawyers continue to experience barriers to being elected or appointed to judicial positions. The lack of diversity fuels mistrust of the courts, as they fail to reflect the communities they serve.
Benefits of Judicial Independence
Judicial independence assures all Americans that cases will be decided on their merits. All litigants know that their case will be decided according to the law and the facts, not the vagaries of shifting political currents or the clamor of partisan politicians. Decisions are based on what is right and just, not what is popular at the moment.
Throughout American history, the independence of the judiciary has protected individual liberties and prevented a tyranny of the majority. Examples include extending voting rights, ending segregation, and protecting average citizens from unwarranted government intrusion.
Emerging democracies look to our system of an independent judiciary as a model. They are all too familiar with "telephone justice," in which a judge adjourns court to wait for the call that tells him or her how to decide the case.
Maintenance of the Independence of the Judiciary Is an Imperative
An independent judiciary free of political pressure is essential to the separation of powers that makes our democracy work. Judicial independence ensures that our system of checks and balances prevents one branch of government from dominating the others and protects the rights of each of us. Americans have a right and a duty to express disagreement with judicial decisions, but not to threaten retaliation against judges. Recent political rhetoric has crossed the line from healthy debate to attempted intimidation of judges.7
WSBA Public Relations and Media Relations Committee
Quite candidly, I have been puzzled by the relatively deafening silence on the Washington legal scene with regard to many of the issues set forth above. An exception is the recent (May 4, 2005) Seattle public forum titled: "What Was the Judge Thinking? The Duty to Decide," that discussed how judges decide controversial issues. The forum was sponsored by the WSBA Public Information and Media Relations Committee, with participation by KOMO TV and an outstanding panel of judges and attorneys, including King County Superior Court Judge William Downing, Seattle University Law Professor Julie Shapiro, Washington State Supreme Court Justice Barbara Madsen, and former King County Superior Court Judge Robert Alsdorf.
The WSBA Public Information and Media Relations Committee is chaired by Elaine Taylor Rose and functions with the efforts of Board of Governors liaison Governor Fawn Sharp and WSBA liaison Judith Berrett (who is also WSBA director of member and community relations). The committee is charged with broadening public knowledge about, and respect for, the law; the rule of law; and the roles, responsibilities, and contributions of lawyers and judges, including their ethical commitments.
The committee was established in September 2002. During its first year, the committee developed a plan to respond to the unjust criticism of judges. When circumstances have warranted, this plan has functioned in an outstanding manner. To ensure that the public confidence is preserved in the judiciary and the courts, the WSBA maintains a policy and program to provide appropriate and timely responses to unjust criticism of judges and courts. This program applies and is implemented when there has been an unwarranted or unjust attack, or series of attacks, on a judge or court which may cause significant harm to a judge or adversely affect the administration of justice. Judges may be precluded from responding to individual attacks or criticism upon them. Therefore, when appropriate, the WSBA responds to such criticism of judges and the courts. This response includes, but is not limited to, correcting erroneous, inaccurate, or misleading public communication involving retaliation against or criticism of judges, courts, and/or the administration of justice, as further provided in the Committee's plan as approved by the Board of Governors; and in generally seeking a better understanding within the community of the legal system and the role of lawyers and judges.
What We Can Do
Despite some disturbing nuances that appeared in certain races in the recent election cycle, we in Washington have been blessed to date with a relative paucity of extremes in the debates with regard to judges and officers of the justice system. Notwithstanding, there are some disturbing harbingers for the future, and our state is not going to be insulated from the storm. There are some things we can do:
1) Continue to explore rational, pragmatic judicial campaign contribution reform.
2) Engage in vociferous healthy debate with regard to the viability of election v. merit selection of judges.
3) Develop methodologies that really work in increasing representation of people of color, women, people with disabilities, and gays and lesbians on the bench.
4) Ensure that judicial salaries and compensation not only keep pace with inflation, but that they much more adequately reflect the prestige and stature that ought to be accorded to the position, when one scrutinizes the magnitude and the gravity of the decisions judges must make on a day-to-day basis involving property, liberty, and even life and death.
5) Acquaint ourselves and get involved personally with the legislators who represent our communities, for the purpose of educating them about the justice system, and about the importance and appropriate priority adequate court funding should have in the legislative process.
6) For goodness sakes, get civics back into Washington schools as a curriculum requirement in order to graduate.
7) Speak out, oppose, and discredit the demagogic critics of our justice system, whenever and wherever they present themselves.
Lawyers need to get involved as professionals and as human beings. We need to keep our heads up, stand up, and speak up on behalf of judges and the justice system. It is clear that attacks on judges and maintenance of the independence of the judiciary require constant vigilance on the part of lawyers, coupled with a substantial amount of character, integrity, professionalism, and responsibility. If we are to safeguard this special legacy with which we and this country has been gifted, nothing less will do. The storm is not going away any time soon. ?
The question is not whether we can; it is whether we will. We can and we will because, working together, there is nothing we cannot change for the better.
Ron Ward may be reached at 206-624-884 or rrw@admiralty.com. If you would like to write a letter to the editor on this topic, please e-mail it to letterstotheeditor@wsba.org or mail it to WSBA Bar News, Attn: Letters to the Editor, 2101 Fourth Ave., Ste. 400, Seattle, WA. 98121-2330.
NOTES
1 Derek Rose, Robertson: Judges Worse than Al Qaeda, New York Daily News, World & National Report, May 2, 2005; Pat Robertson, The Christian Coalition, This Week with George Stephanopolous (ABC television broadcast, May 1, 2005).
2 The Judges Made Them Do It, New York Times, April 6, 2005; Senator Joseph Cornyn (R-Texas), U.S. Senate, April 4, 2005.
3 Tim Harper, Republican Leader Warns Judges: You Will Answer for This, Toronto Star, April 1, 2005; Congressman Tom DeLay (R-Texas), U.S. House of Representatives, April 1, 2005.
4 Mike Allen, House GOP Plans Strategy on Federal Courts, The Washington Post, May 12, 2005; Congressman Tom DeLay (R-Texas), Congressman James Sensenbrenner (R-Wis.), U.S. House of Representatives, May 12, 2005.
5 Peter Wallsten, Evangelical Groups Seek "Defunding" of Judges, Los Angeles Times, April 23, 2005; Tony Perkins, president, Family Research Council, March 17, 2005.
6 John Marshall, address to the Virginia State Convention, Proceedings and Debates of the Virginia State Convention of 1829-30 at 616 (1830).
7 Supporting America's Judiciary, (visited May 4, 2005) <http://www.abanet.org/barserv/attacksonthejudiciary.html>.
