Don't Let Judge Roll Die in Vain

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Arizona Chief U.S. District Judge John M. Roll, slain in a supermarket on a sunny Saturday morning, was the victim of awful circumstance. Ever the gentleman--so said 9th U.S. Circuit Court Chief Judge Alex Kosinski, later, in tribute--Judge Roll had stopped by to say hello to Rep. Gabrielle Giffords at the very moment the Tucson gunman struck. No brave and vigilant U.S. Marshal could protect or save him from the attack.

Judge Roll's death may have been random in the sense that he was not the target of Jared Lee Loughner's gun. This was not, from what is now publicly known, an intentional attack upon a federal judge but rather a matter of a dedicated public servant being in the wrong place at the wrong time. Like the others involved in this horrible tragedy, living and dead, poor Judge Roll's fate is akin to that of Jim Brady in March 1981, a coincidental victim of John Hinckley's attempt to assassinate President Ronald Reagan. It is less akin to U.S. District Judge Robert Smith Vance, the federal jurist who was killed by a mail bomb at his home in Alabama in 1989.

But it would be unfair to Judge Roll's memory, not to mention unsafe for his surviving colleagues on the bench and unwise of the Congress, to discount the level of hate and anger directed at Judge Roll and other judges across the country in this disheartening season of American discontent. For example, I wrote an obituary for the judge on Saturday afternoon. By Sunday morning, commenters were leaving messages like this one:

"Apparently you weren't aware that Rolls allowed a $32 million civil rights lawsuit between some illegals and an Arizona rancher whos property they were using to enter the US illegally to proceed. It looks to me as thought the good judge was more interested in protecting illegal sp*cks then he was the American people. Now he's dead, he's going to stay dead and he's not going to roll over for the illegals anymore. I think this country just became a much better place to live."

A much better place to live? In the aforementioned lawsuit, which came to a head in 2009, Judge Roll did precisely what federal judges are supposed to do--apply the law neutrally, treat the poor and dispossessed no worse and no better than the rich and powerful, and seek to dispense a measure of justice without fear or favor. As a result of his courage, his application of the law in circumstances he knew would be unpopular among Arizona's loudest activists, Judge Roll was threatened with death, both privately and publicly. He and his family needed round-the-clock security from federal agents.

It is vital today, before the funerals and while America still is paying attention to this tragedy, for the record to reflect what the case was actually about, why it was brought, and what Judge Roll actually did. The civil lawsuit was brought by the Mexican-American Legal Defense and Education Fund (MALDEF) against an anti-immigrant Arizona rancher named Roger Barnett. The allegations were that Barnett, who had a long history of physically and emotionally terrorizing migrants, had physically and verbally abused a particular group of immigrants. The narrative read like a Jim Crow tale or even a John Wayne western--Barnett is a former deputy sheriff in his county and the brother of a former sheriff there. Who else but a federal judge could have held him accountable?  

Here is a powerful account of part of the trial, and some of the circumstances behind it, by a witness named Max Blumenthal, an investigative journalist who had been following the Barnett story for years before he was called by the MALDEF to testify against Barnett in Judge Roll's courtroom. In Blumenthal's words, prior to trial: "Henry Solano, a former US Attorney from Colorado who now headed MALDEF, told me a little about Roll before it was my turn to testify: 'He's a conservative but he's fair. And he is really tough, so make sure to answer everything directly.'" Judge Roll, a former prosecutor and appointee of George H.W. Bush, eventually forced a recalcitrant Barnett to pay some money for his misdeeds.

Read Blumenthal's account and then tell me that the country is better off without Judge Roll.  The story of how the Barnett case warped in the minds of some into an example of Judge Roll "rolling over for the illegals" is the story of how warped indivduals hounded U.S. District Judge Susan Bolton with death threats when she issued her ruling on Arizona's controversial new immigration measures this summer. It is the story of how warped individuals petrified U.S. District Judge David O. Carter and his family when the judge dismissed a "birther" lawsuit against President Barack Obama in California last year. The dark rhetoric that has been the subject of so much discussion since the Tucson attack is not just aimed at and by politicians. It's aimed at judges, too.

Judicial security has improved over the past decade--despite or perhaps because of the murder of U.S District Judge Joan Lefkow's husband and mother in Chicago in 2005--but there is still much more work to do. All through 2010, federal judicial leaders worked with the U.S. Marshals Service and other government security arms to improve security and privacy for judges and their familes. The latest concern is the public dissemination of photographs and addresses and other personal information of judges and their families, being spread with hateful intent across the Internet with a frequency and scope unimaginable even a decade ago. The judges are scared. And they ought to be. Meanwhile, the U.S. Marshals Service is under inreasing pressure and budgetary constraints imposed upon it from lawmakers.

There is little doubt that the Congress will react to the Tucson tragedy by spending more money to better protect lawmakers. At the same time the legislators are voting to protect themselves, they ought to vote to better help the U.S. Marshals better protect our nation's judges. I propose the introduction and passage of the John McCarthy Roll Judicial Protection Act of 2011, a measure that would help reassure judges everywhere that their bravery is noticed, treasured, and worthy of as much protection as is possible in this dark age of rage toward well-meaning public officials who are just trying to do their best.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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