It's Time to Stop Bullying Judges

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The nation has enough problems for legislators and presidential candidates to worry about. So why are they attacking the judiciary?

Newt Gingrich - Mario Anzuoni : Reuters - banner.jpg

They can't create jobs for their constituents. They cannot stem the budget shortfalls that are turning their districts into third-world wards. They cannot find solutions to the complex problems raised by the internationalization of world economics. And they dare not take on powerful corporate interests because that would require them to turn on their masters, the ones whose political contributions fuel their campaigns.

Inept and frustrated, insecure about their own abilities to contribute to the next American turnaround, federal and state lawmakers, most of them tea partiers or radical Republicans, have resorted to doing what bullies do when they feel the need to assert power. They are picking on people they know cannot or will not fight back. They are venting their impotence on the lone remaining branch of government that still works most of the time: the judiciary.

Spurred on by Newt Gingrich's ridiculous plan to subpoena federal judges to Capital Hill to force them to answer for unpopular opinions, I have spent the better part of the past week immersed in the story of how legislators all over the country have turned upon judges, derided the concept of the separation of powers, and undercut the constitutional concept of an independent judiciary designed to protect individuals from the tyranny of the majority.

I have talked to experts like Bruce Fein, the conservative legal scholar, and to Laurence Tribe, the progressive constitutional law professor at Harvard Law School. I have talked to federal judges. I have looked at the issue from a federal perspective-- Gingrich's idea-- and from the perspective of state legislatures-- for example, New Hampshire and its rogue House of Representatives. And two stark themes have emerged from this review. 

The first theme is that many of the anti-judge theories espoused by Gingrich and company are, in the words of one federal judge I spoke with, mostly just "pseudo-scholarship" disguised as constitutional doctrine. The other theme is that too few in high positions of government, on any level, seem willing to do what always needs to be done to stop bullies: stand up to them. This deafening silence is wrong-- and dangerous. It's time to speak up.

The Bullies

In New Hampshire last week, 258 members of the House of Representatives passed a resolution that "repudiated" a ruling by the state's Supreme Court and urged the state Senate to simply ignore the judicial decision. On November 1st, reports William Raftery at his "Gavel to Gavel" site for the National Center for State Courts, those same legislators will spend more energy and taxpayer dollars seeking to impeach state-court family law judges. 

I don't mean to pick on New Hampshire. All over America, GOP-led legislatures are pushing to impeach state judges. Lawmakers in Iowa, Massachusetts, Missouri, Oklahoma, New Jersey and Pennsylvania have moved in on the judicial branch, the most infamous of these crusades being the effort in Iowa to oust those state supreme court judges who voted in favor of same-sex marriage. Evidently that is still a "high crime or misdemeanor" to some.

It's one thing for politicians to seek out impeachment proceedings that are sui generis. But now legislators are including specific impeachment language in the text of their statutes. In Arizona, New Hampshire and Virginia, rump Republican lawmakers this year introduced bills making it an impeachable offense for judges to make rulings on FOIA requests or to merely cite international law. There's a legal term-of-art for such efforts: it's called "bat-shit crazy."

Nor is the national presidential conversation much better. Take Texas Governor Rick Perry, for example. He thinks Congress should get a legislative veto overriding Supreme Court decisions. Michelle Bachmann wants to strip the Supreme Court of the power to decide same-sex marriage cases. Rick Santorum wants to shut down the 9th U.S Circuit Court of Appeals. I could go on-- check out the Justice At Stake site for more grim details.

And Gingrich? When I wrote two pieces last week criticizing his patently illegal plan to intimidate the federal judiciary, his campaign responded with a rambling screed that the aforementioned Bruce Fein, who once worked for Ronald Reagan, called "an embarrassment to the cerebral faculties." Memo to the Gingrich team: if you are $1.2 million in debt don't your staffers have more important things to do than argue the Constitution should be disobeyed?

The Meek

In response to this legislative noise there has been most silence from the judicial branch. The federal judiciary has no public relations firm. It has no savvy marketing arm. Judges are generally precluded by ethics rules and codes of conduct from engaging in the sort of political "quick-response" action that might help neutralize the partisan attacks upon their authority and independence. So they mostly sit there and have to take it.

Unfortunately, even the judges who could and should say something are silent on the topic. The Chief Justice of the United States, John Roberts, with a nearly perfect conservative voting record in his five years on the High Court bench, would be the natural and obvious tribune to deliver this message to conservatives. And he's occasionally spoken bravely on the topic of judicial independence. But he's been notably silent in this season of discontent. 

Justice Antonin Scalia, himself capable of bullying on occasion, also would be a perfect judicial candidate to answer those legislators who want to diminish judicial independence. But when he came to Capitol Hill a few weeks ago, he declined the opportunity to do so. Justice Clarence Thomas? There's no chance he's part of the solution since he's part of the problem; he told a Nebraska audience recently that the Supreme Court has too much power.

How about that famous former constitutional law professor, President Barack Obama? Nope. He's been mute, too, even though he's criticized Russia for its perpetual lack of judicial independence. Attorney General Eric Holder? Nope. And even on a micro level the executive branch has failed. New Hampshire Gov. John Lynch said nothing-- nothing-- when his attorney general was impermissibly ordered by the state house to sue the federal government.

And where's Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) on this? He invited Justices Scalia and Stephen Breyer to a hearing on October 5th. But he didn't ask either man to speak up about threats to the judiciary. To my knowledge no one on the panel did. The last time the Senate evidently broached the topic with a justice was in 2007. But the world has turned upside down since then, hasn't it?

The Brave

What's needed here, I'm sad to say, is a Joseph Welch/Joseph McCarthy moment, wherein a bully finally gets called to account, in public, for perverting core constitutional values in the name of politics. Some political or legal leader or cultural leader needs to emerge to candidly tell these legislators not just that they are dead wrong in their analysis but that they are doing their constituents a grave disservice by projecting their own failures on the judiciary. 

President Obama should solicit and accept an invitation from the American Bar Association, or better yet the Judicial Conference of the United States, to speak out on the topic. Sen. Leahy should invite Chief Justice Roberts back to the Judiciary Committee to remind Congress that there are vital reasons why Marbury v. Madison still makes sense. Attorney General Holder, the nation's chief lawyer, should finally pipe up. So should Justice Scalia.

Their message should be roughly the same-- and if I were to spread the word it would read something like this:

All over America, citizens are in the streets to protest the government's economic policies and Washington's inability to solve them. Tens of millions of Americans are unemployed. The Senate is in gridlock because of the fillibuster and polls shows that support for Congress is at or near all-time lows. Local legislatures are hardly faring better. And yet amid all this lawmakers everywhere seek to blame the judiciary for the nation's ills.

And for what? Because some legislators disagree with some rulings made by some judges. That's a test no judge can pass, for every judge everywhere disappoints roughly half the population each time he or she issues a ruling. That's the whole point of an independent judiciary; that it is not subject to the whims and caprices of the majority, as expressed in the sort of ideas we've seen lately on the campaign trail and in statehouses.

Congress should get its own house in order before it tries to clean up the judiciary. Local lawmakers ought to spend their time helping their constituents instead of trying to tweak the balance of power between the branches. Presidential candidates should offer practical solutions which tackle the big problems of our time instead of trying to sell the American people on the idea of a restructered Constitution. It ain't broke. It doesn't need fixing.

When unemployment is under control, when our banks are loaning money again, when our national debt and deficit are diminishing, when our prison populations are not the highest in the world, when our middle class is expanding and earning more, when our children can afford basic college, then maybe our lawmakers can have a national debate about whether it's a good idea to neuter our judges in the name of democracy. Or maybe not.

Image credit: Mario Anzuoni/Reuters

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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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