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It's The Law, Not the Judge

But These Days the Bench Is the Hot Seat

By Jeffrey Rosen
Sunday, March 27, 2005; Page B01

The response to the rulings in Terri Schiavo's case, following close after the murder of a state judge in Atlanta and a federal judge's family in Chicago, has put not only judicial opinions but judges themselves suddenly under the spotlight. The U.S. Marshals Service reports a "dramatic increase" in threats against federal judicial officials in recent years. And political attacks on judges seem to grow ever more vitriolic. The title of a best-selling new book makes its unsubtle point: "Men in Black: How the Supreme Court Is Destroying America."

Judges today are being catapulted into public view as personalities who seem fair game for attack rather than as anonymous oracles of the law. Part of the reason for this is the legalization of politics: Both liberals and conservatives are increasingly asking judges to decide issues -- from the right to die to presidential elections -- that politics are unable to resolve. As a result, when politicians and disappointed litigants don't like the result of a judicial decision, they feel emboldened to demand a new judge rather than accepting their defeat with good grace. This new personalization of the judiciary poses grave threats to the idea of judicial independence, which judges should try to resist by avoiding the spotlight rather than courting it.

Chief Justice William Rehnquist has expressed reservations about such self-revelation. (AP)

The Schiavo case is the most dramatic illustration of this trend in which politicians try to cherry-pick judges who agree with them and attack those who do not. Judge George W. Greer, the circuit court judge who presided over the case in Pinellas County, Fla., has been vilified throughout the ordeal: Opponents picketed him, bombarded him with harassing letters and e-mails, and threatened to impeach or even kill him.

The response of Congress and the president to his ruling was unprecedented: They attempted to select a judge more to their liking by passing a law directing federal courts to ignore Greer's findings and to reexamine the case. But two federal courts and the U.S. Supreme Court reached the same legal conclusions as Greer. That suggests the law is clear. But what did the disappointed petitioners do? They denounced the judiciary in general: "The judges are running this country," Schiavo's father, Robert Schindler, said Thursday afternoon outside the hospice where his daughter has received much of her care since she collapsed in 1990.

Congress has contributed mightily to this poisonous atmosphere. Both parties are responsible for the escalating warfare over judicial nominations, which is now on the verge of blowing up the Senate, as Republicans prepare to eliminate the filibuster and Democrats prepare to retaliate by bringing other Senate business to a halt. This self-destruction would cap a decade of attacks on judges by both parties. In 2003, for example, Congress passed a law requiring that every time a federal judge reduces a sentence, the judge's name should be reported to Congress. "The game is over for judges," announced Sen. Orrin Hatch (R-Utah).

There have been at least nine periods in American history when Congress has tried to curb judicial independence, beginning with the Jeffersonian Republicans' attacks on the Marshall court. What makes the current wave of judge-bashing unusual is that virulently personal attacks now come from both sides of the political spectrum. Liberals routinely denounce such Supreme Court justices as Antonin Scalia and Clarence Thomas as partisan conspirators, and they publish books with titles like "Right Wing Justice: The Conservative Campaign to Take Over the Courts." And conservatives respond in kind. "Some justices have been senile, racist, and crooked," Mark Levin, author of the conservative "Men in Black," told the National Review Online. According to Levin, "de facto judicial tyranny" today "frustrates and disenfranchises the American people and thwarts representative government."

In addition to its intemperance, the accusation that judges are anti-democratic elitists is also flatly wrong. As Mark Tushnet of Georgetown University Law Center argues in a less popular but far more convincing new book, "A Court Divided," the Rehnquist court has actually supported the views of a narrow majority of the American people, rather than thwarting them, in all the most controversial cases of the culture wars, involving affirmative action, gay rights and access to early-term abortions. In the Schiavo case, too, polls show that a majority of Americans agreed with the federal judge's decision not to reinsert the feeding tube and strongly disagreed with Congress's effort to interfere in the legal battles.

What can explain the odd gap between the political attacks on judges as tyrannical activists and the reality that, in most cases, for better or worse, they reflect the constitutional views of national majorities? The most obvious culprit: interest groups. Although judicial nominations are not a salient political issue for most of the country, they matter intensely to groups on the extreme left and right, who want to use the courts to achieve results they are unable to win at the ballot box. But there may be a political price to this pandering: President Bush and congressional Republicans have been placating their religious and social conservative base while alienating the rest of the country.

What's more, judge bashing by the president and Congress creates an atmosphere of disrespect that encourages citizens to personalize the judiciary as well. In this more polarized, less hierarchical age, more people are proving unwilling to accept judicial decisions with which they disagree: If Congress can demand a new judge when it doesn't like the result of a case, why shouldn't a disappointed litigant, as well?

Journalists contribute to this personalization by emphasizing in stories about the courts, the political affiliation of federal judges and the presidents who appointed them. And even juries have succumbed to the pressures for personalization. Until the 1960s, jurors generally refused to talk to the press, reflecting the widespread convention that justice is blind; today, in high-profile trials, they have their own booking agents pitching them for the morning talk shows within moments after a verdict.

But judges are not entirely powerless in the face of these relentless cultural and political forces. Their most effective defense is to follow the law as scrupulously as possible and not to be rattled by political pressures. "All the judges have banded together to support Judge Greer," Schiavo's father lamented.

It's important, too, for judges not to be rattled by political attacks into grandiose assertions of judicial supremacy. When the Rehnquist Court, in reaffirming Roe v. Wade in 1992 and the case requiring cops to give Miranda warnings in 2000, asserted that it alone was entitled to interpret the Constitution, it exaggerated its own political importance in a way that invited further congressional attacks.

Finally, to the greatest degree possible, judges should try to avoid the spotlight. In the 19th and 20th centuries, there were no judicial memoirs, in the modern sense. The first justice to present himself as a celebrity was William O. Douglas, who published a largely fictionalized account of his Pacific Northwest boyhood in 1974. But Douglas's unfortunate example may have been a harbinger of things to come. Not long ago, Justice Sandra Day O'Connor appeared on the morning talk shows to promote her own autobiography of her Western girlhood. And Clarence Thomas recently sold a memoir for $1.5 million.

A better approach is that of William Rehnquist, who told C-SPAN that he always admired Robert E. Lee's refusal to write a memoir; the chief justice didn't think it appropriate for judges to reveal their personalities in public. Unlike some of his colleagues, Rehnquist understands that ill-advised exercises in self-revelation only encourage citizens and politicians to respond to judges in personal terms. At the vmoment, the judiciary is the last branch of American government that has largely resisted the strong public pressures on officials to bare their emotions and personalities in public. And in our violently polarized age of celebrity, judges will encourage the personalization of justice at their own peril.

Jeffrey Rosen is a law professor at George Washington University and legal affairs editor of the New Republic. His latest book is "The Naked Crowd" (Random House).

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