False Equivalence Watch, Judiciary Edition

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President Obama tried one kind of attack on judicial independence. The Republican candidates have been trying another. Both are bad -- but one is worse. 

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"Judge Upset By Obama Remarks Not Political," ventured an Associated Press headline Friday over a story about 5th U.S. Circuit Court of Appeals Judge Jerry Smith -- who, just days earlier, had undertaken the most overtly political act by a federal judge in years. Meanwhile last week, when President Obama spoke out briefly and inarticulately about the Supreme Court and the Affordable Care Act, many of the same officials who had remained mute for months while Republican presidential candidates threatened the federal judiciary with subpoenas and marshals howled in indignation.

Welcome to the False Equivalence Watch, Article III Edition, a spin-off of the political meme James Fallows has been focusing upon so well and intently for the past year or so here at The Atlantic. False equivalence, the media habit of giving equal weight to opposing arguments, was relevant recently on this legal beat when it came to reporting about the intransigence of Senate Republicans to vote even on those federal judicial nominees who have swept through the Judiciary Committee with bipartisan support. And now comes the kerfluffle over the president's "unprecedented" line and his purported attack upon the Court.

Just as there are substantive differences in the way Senate Democrats and Republicans have treated each others' judicial nominees in the past two decades (the figures don't lie), there are serious distinctions between what the president said last week and what leading Republican figures have been saying for months now about the federal courts. This is why an AP story which quotes one of Judge Smith's law clerks ("he is very careful to stay out of any political controversy," the fellow said), but which fails to mention the 5th Circuit's roguish behavior and reputation, does such a disservice to the public debate.

1. What does "the independence of the judiciary" actually mean? There are two main kinds of judicial independence. There is what some people call "decisional independence," which centers on the idea that individual judges or courts should be free from political pressure when they are deciding specific cases. And there is what some folks call "institutional independence," which centers around the idea that the judiciary as a whole should be free from too much political power and influence from the other two branches of government. From The Constitution Project, read this handy "Newsroom Guide to Judicial Independence."

2. What does this difference mean in the context of Smith v. Obama and Gingrich v. 9th Circuit? The president's remarks about the justices and the Care Act went mostly (but not completely) to "decisional" independence since they focused upon one court (the Supreme Court) and one dispute (over the federal health care law). The Republican primary attacks, on the other hand, went mostly (but not completely) to "institutional" independence since they focused upon limits to judicial authority which would transcend a single case.

3. Attacks on "decisional" independence should be, can be, and are more easily tolerated under our constitutional framework. It is a "decisional" attack to criticize a ruling, a legal standard, a precedent, a judge, an approach to oral argument, the writing habits of an appellate panel, a judge's extracurricular speeches and activity, and I'm sure a great many other things that go into the art and science of judging. We see this sort of criticism all the time, of course, and there is broad recognition and acceptance within the federal judiciary that such criticism, even when it is unfair or life-threatening, is the price of life-tenure and the First Amendment.

4. Attacks on "institutional" independence are more worrisome. By contrast, judges worry a great deal about threats upon their "institutional" independence. It's one thing to blast a judge or a court for issuing a particular ruling. It's another thing to ban a court from ever considering that matter again, or to require that judge to be hauled before Congress, or to threaten to de-fund the courts in retribution for legal decisions. Any "institutional" attack designed by politicians (the majority) to prevent judges from protecting individual rights (the minority) is especially concerning because such protections are the essence of the Bill of Rights.

5. Obama and Bush. The president last week said little more than what he said back in January 2010 when he criticized the same Supreme Court over its Citizens United ruling. And he said little more than what President George W. Bush said about judges back in November 2007. To their credit, neither Bush nor Obama focused upon "institutional" independence -- and Bush was wise enough, after Bush v. Gore especially, not to tag his remarks to a particular case. President Obama's problem last week was that he was so imprecise that he gave the false impression he had crossed over to an "institutional attack."

6 Obama v. Supreme Court. It was the first line of the president's speech last Monday that has gotten all the attention. Here's is what he said:

I am confident the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically-elected Congress.

Let me briefly parse it. The president was blasted for using the word "unprecedented," the idea being that that there is, indeed, some constitutional precedent that would enable the justices to strike down the Care Act. And he was blasted for using the word "extraordinary" because the Supreme Court, in fact, strikes down laws all the time, including some of the worst federal ones. I disagree with the criticism, but it's fair enough. Whatever else this language shows about the president and the Court, whatever it portends for the coming presidential campaign, none of this can reasonably be considered an "institutional" threat to the judiciary.

7. Roosevelt v. Supreme Court. Last week, I wrote about how mellow President Obama had been compared with President Franklin Roosevelt. FDR attacked the judiciary on both levels but it was only when he focused upon a direct challenge to the Supreme Court's "institutional" independence -- via the court-packing plan -- that he ran into big political trouble. The lesson then, or at least one lesson anyway, was that even in the depths of the Great Depression the American people were unwilling to ditch a reasonable measure of judicial independence. Do Americans feel the same way now about their Supreme Court?

8. Obama v. Smith. Let me pivot now to the other side of the argument. Judge Smith is the outlier here, not the president. A federal appellate judge, in a case where the issue had not been raised by the parties, extemporaneously demanded from the executive branch a court filing over an argument it had never made. This is precisely the sort of discourteous behavior the 5th Circuit is known for in some legal circles. Don't believe me? Read the procedural history (and media coverage) of a capital case called Miller-El v. Dretke, the one in which the 5th Circuit simply refused to obey the Rehnquist Court's command.

9. Smith v. Biery. Last Friday, I wrote about Judge Smith's expressed outrage about the president's remarks -- in the context of the appellate judge's continuing silence in the face of Republican primary attacks on one of his colleagues, U.S District Judge Fred Biery. The West Texas Clinton appointee, who ruled in a school prayer case last June, even has been the subject of death threats. Here we are reminded of how grim "decisional" attacks upon judicial independence can be -- and also how reluctant most judges are to publicly defend themselves or each other.

My main beef with Judge Smith is that not that he butted into a fight that had nothing to do with him. It was because he got bent out of shape over a tame "decisional" attack by the president while saying nothing about "judicial independence" during the far more pervasive and dangerous "decisional" attacks on his fellow Texan, Judge Biery. The contrast is even more blunt, and Judge Smith's silence is even more dubious, when you consider that the Republican attacks on Judge Biery crossed over into "institutional" ones on the judiciary itself.

10. Biery v. Gingrich. The GOP attacks on Judge Biery have been both "decisional" (by Newt Gingrich, by Rick Perry, by Texas Sen. John Cornyn) and "institutional" (by Gingrich). Indeed, it's hard to imagine a more brazen assault on "institutional" independence than by forcing judges to submit to Congressional questioning, under subpoena power enforced by federal marshals, the merits of their decisions. There is simply no "equivalence" here to President Obama's "decisional" attack on the Court. The difference isn't just a matter of degree -- it's a matter of definition.

There are people who push back against "decisional" attacks upon judicial independence. The American Bar Association does this and so do many other groups and individuals. And of course I believe that certain "decisional" attacks go too far -- in fact, I've mentioned one of them here. By comparing "decisional" and "institutional" attacks I don't mean in any way to diminish the seriousness of "decisional" acts -- they can and often do have a terrible impact upon the administration of justice and upon the targeted judge him or herself. My point instead is to highlight just how serious "institutional" attacks are, by contrast, for by their very nature they take the act of judging away from the judge.

11. The GOP v. Article III. Gingrich isn't alone in pitching to undermine the "institutional" independence of Article III judges. Rep. Michelle Bachmann (R-Minn.) last year argued that federal judges should be stripped of their power to decide same-sex marriage cases. Gov. Rick Perry thinks Congress should be able to veto Supreme Court rulings. Rick Santorum, meanwhile, wants to do away with the 9th U.S. Circuit Court of Appeals. To his credit, Mitt Romney, the presumptive Republican nominee, has generally limited his criticism of the courts to "decisional" criticism.

12. Legitimacy. The most reasonable argument against the president's remarks last week is that they sought to undermine the legitimacy of the Supreme Court's current deliberations, and its looming rulings, in the Care Act cases. In the bitter months ahead, this sort of court criticism would be well worth watching, both from White House, should it campaign against the conservatism represented by the Roberts Court, and from conservatives, who have made judiciary-bashing a prime topic of their primary season. Will Romney stay on the "decisional" side of the fence? Or will he go "institutional" like his defeated primary foes.

The president last week didn't say that the Supreme Court should never consider federal health law cases or that he planned to use executive branch subpoena power to haul Justice Anthony Kennedy to the White House if Justice Kennedy votes against him on the Care Act. He didn't say that he wanted to get rid of the 5th Circuit because he disagrees with its rulings. The day all that happens we will finally have the "equivalency" on this topic so many last week were so quick to see and so eager to accept. In the meantime, and still, there are some real differences here that mean a lot to a lot of people.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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