Judge-Bashing Comes to the 2012 GOP Race

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Gingrich's latest tirades are part of a long history of Republican attacks that persist despite the courts having become more and more conservative.

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Newt Gingrich won't be the last demagogue to lash out at the judiciary. And he certainly isn't the first. American politicians have a rich history of trying to score points with the masses by claiming that federal judges are a dangerous cadre that must be both feared and foiled. This was true when the federal government was held in relatively high esteem and it is true now that the polls say our elected officials viewed as beneath contempt by the vast majority of Americans.

So Gingrich's recent tirades against judges may be crazier than anything we've seen recently from a serious presidential contender. But they are no crazier than what state lawmakers in New Hampshire are doing to their judges or what Iowa voters already have done to their justices, at least the ones who voted in favor of the constitutionality of same-sex marriage. And, as stark as Gingrich's message is, as dangerous and as disrespectful, it isn't as ugly as some of the other political assaults federal judges have had to endure over the years.

Anne Emanuel's important new book, Elbert Parr Tuttle, Chief Jurist of the Civil Rights Revolution, reminds us that some legal conflicts are destined to come down to a judge and an angry mob. Tuttle was the Eisenhower appointee who, as the Chief Judge of the 5th U.S. Circuit Court of Appeals, consistently put into practice, in the Deep South, the Supreme Court's lofty promise of school desegregation. Emanuel tells his story well but it's clear that Judge Tuttle, for whom she clerked, was spared the brunt of the mob's fury.

For example, Emanuel takes us back to November 23, 1960, a particularly ugly day in the annals of political attacks upon the judiciary. U.S. District Judge J. Skelly Wright was a Louisiana-born federal judge who oversaw the desegregation of public schools in New Orleans at great personal peril and cost. Here is what he had to deal with when he sought in his own backyard to implement the mandates of the two Brown v. Board of Education decisions. Of November 23, Emanuel writes:

[A]n extraordinary session of the Louisiana legislature had been interrupted by a 'mourners' march' commemorating November 14, 1960, when a handful of African American children had first attended white public schools in New Orleans. The paraders carried a coffin in which lay a blackened doll dressed in judicial robes and labeled "Smelly Wright.' Louisiana lawmakers gave the marchers a standing ovation.

There are plenty of similar grim examples in Emanuel's book -- and also in Jack Bass's older book on the subject, the title of which says it all: Unsung Heroes: The Dramatic Story of the Southern Judges Of The Fifth Circuit Who Translated The Supreme Court's Brown Decision Into a Revolution For Equality. Heroes, indeed, to tens of millions of Americans, who needed federal judges to help them cast off the "pernicious effects" of de jure segregation. Villains, as well, to men like Gingrich, who want to re-litigate the great civil rights cases.

Based upon his recent criticism of the Supreme Court's 1958 ruling in Cooper v. Aaron, in which the justices reminded Southern officials that they had to follow desegregation law, it's clear where Gingrich would have stood on Judges Wright and Tuttle. It's also clear where all of this is headed in 2012 -- two ribbons of fury, one aimed at California, where the 9th U.S. Circuit Court of Appeals will soon rule on same-sex marriage, and one toward Washington, where the justices will rule on huge health care, redistricting, and immigration cases.

What's remarkable about all of this furor is that the complaint comes from some leading conservatives at a time when the federal courts are arguably as conservative as they have been in 75 years. From the Supreme Court down, Republican-appointees haven't wielded as much control on the bench since the Depression, when President Roosevelt and his gang railed against justices like Willis Van Devanter. The so-called Rehnquist Revolution has dramatically succeeded -- more so, you could further argue, than the Reagan Revolution.

And why not? There has been a Republican in the White House for 20 of the past 31 years -- two-thirds of that span -- and it shows. Since President Reagan's inauguration in 1981, the three Republican presidents have nominated 1,074 federal judges to the bench -- including seven Supreme Court justices. The two Democratic presidents by contrast have nominated just 496 federal judges and four Supreme Court justices. This isn't your father's federal judiciary. It's more like your great-grandfather's.

None of this matters to Gingrich and company. Their favorite judicial target these days is a federal trial judge named Fred Biery and the story of his perceived infamy illustrates how little ammunition conservative ideologues must have when they complain about the runaway liberal judiciary. Judge Biery, an appointee of President Clinton, served in active duty in the military. He attended both Southern Methodist University and Texas Lutheran University. And, in June, he issued this ruling on a preliminary injunction barring prayer at a high school graduation.

The ruling is only four pages long, it cites 11 other cases as precedent, and it was almost immediately overturned on appeal by the 5th Circuit -- Judge Tuttle's old stomping grounds -- in a ruling that was itself just two pages long. This is the extent of the analysis the three-judge appellate panel came up with to reverse Judge Biery:

On this incomplete record at this preliminary injunction stage of the case, we are not persuaded that plaintiffs have shown that they are substantially likely to prevail on the merits, particularly on the issue that the individual prayers or other remarks to be given by students at graduation are, in fact, school sponsored. We also observe in particular that the plaintiffs' motion may be rooted at least in part in circumstances that no longer exist. For example, the school has apparently abandoned including the words "invocation" and "benediction" on the program. The motion also did not expressly address the involvement of the valedictorian in the graduation ceremony.

The three judges who issued this unsigned opinion consisted of 1) W. Eugene Davis, who was nominated to the 5th Circuit by President Reagan 2) Judge Jerry Edwin Smith, who also was nominated to 5th Circuit by Reagan, and 3) Judge Leslie Southwick, who was nominated to the federal appeals court by President George W. Bush. When you read the graph above do you read a jeremiad against an "activist" trial judge? Or do you read a convenient cop-out by a federal court unwilling to address the merits of the Supreme Court's school prayer precedent?

By ripping into Judge Biery, Gingrich ignores almost all of the material facts -- the trial judge's precedent, the way in which the 5th Circuit blithely dispatched with the case, the fact that the panel was dominated by Republican appointees, and the fact that Gingrich's base won the case. At least Judges Wright and Tuttle prevailed in the cases that brought them such scorn in the South. Poor Judge Biery gets all the scorn without knowing whether he would have been proven right or wrong about the law.

We think we have escaped some of the ugliness of our past. But we really haven't. The names of the judges change. So do the causes they rule upon. But the destructive assaults upon the judiciary remain the same. The coming year will see landmark court rulings on some of the most sensitive social issues of our time. And you can bet that the federal judiciary will be scapegoated when those rulings come down. Each of us, then, will have a choice to make in 2012, about how we want judges treated in the future.

Image: Reuters.

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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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