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Judge Not
In the Court of Public Opinion, the Bench Is in the Hot Seat

By Philip Kennicott
Washington Post Staff Writer
Tuesday, May 17, 2005

King Solomon, hearing the case of Harlot v. Harlot , in which two women laid claim to the same baby, proposed cleaving the child in half. This, in turn, ferreted out the real mother, who gave up the baby rather than see it die. "And all Israel heard of the judgment which the king had rendered," says the Bible, "and they stood in awe of the king, because they perceived that the wisdom of God was in him, to render justice."

One might think this would be perceived as an outrageous bit of arrogance from the bench, yet Americans, in their literature, their myths and in rhetoric we still hear today in arguments about the judiciary, have an abiding affection for Solomon's style of justice -- justice that is simple, often deadly and delivered directly from God. So much so that the kind of justice that replaced Solomon's wise improvisation is under stinging attack.

As the Senate considers changing the filibuster rule in judicial confirmations, a move that could radically change the makeup of the federal courts, the language of the debate rings with populism. The court system, say these critics, harbors arrogant and abusive judges who make up law and policy rather than decide cases based only on the Constitution and established precedent. The rhetoric borrows terms and ideas from America's ancient argument with aristocracy: Judges are arrogant, even tyrannical, a law unto themselves, indifferent to public opinion. But it also recalls a fantasy of frontier justice that may well date back to the theocratic justice of the Puritans, and ultimately to the warrior-judges of the Old Testament.

The religious broadcaster Pat Robertson has regularly referred to American judges as an "oligarchy." It is a rare example, from a voice on the right, of invoking something that might be seen as "class warfare." But he's not alone. A host of tropes, all derived from the idea that elite status leads to decay, dissolution, even impotence, have been thrown at judges recently. Anti-abortion activist Randall Terry, angry about Florida Circuit Court Judge George Greer's order to remove Terri Schiavo's feeding tube, suggested on MSNBC that corruption is endemic among judges: "Judge Greer is a corrupt judge. And that should not surprise anybody. People find out about corrupt judges all the time."

Mark Levin, author of "Men in Black: How the Supreme Court Is Destroying America," mixes the idea of corruption with the (also anti-aristocratic) idea that many judges are old and dithering. Of the men and women who have held the position of Supreme Court justice, he said (in an interview with Robertson), "Some have been average, some have been racist, some have been crooks, and some have been senile." An array of angry Web sites makes this, and worse, their stock in trade, collecting every headline and Web link related to sexual, financial or ethical improprieties, suggesting judges are predatory and ungovernable.

In a speech in which he implied that recent violence against judges may be related to broader anti-judiciary sentiments (he later expressed regret), Sen. John Cornyn (R-Tex.) used less inflammatory, but equally anti-aristocratic terms. Upset that some judges are seeking insight from the legal systems of other countries, he accused them of being elitist, and even hostile to American values. And he suggested that there are some judges who fancy themselves members of a higher caste: "These are not, as some people have suggested, high priests able to discern great truths that you and I are unable to figure out."

In 1888, Edward Bellamy published "Looking Backward: 2000-1887," one of the most popular novels of its time, and a highly influential utopian fantasy of a better, simpler America. In the year 2000, according to Bellamy, America would be one giant corporation, with the labor and benefits shared among all citizens. "The law as a special science is obsolete," explained one of Bellamy's characters from the year 2000. "It was a system of casuistry which the elaborate artificiality of the old order of society absolutely required to interpret it." Bellamy's markers of the "old" style of American justice -- "casuistry," "old order of society," "elaborate artificiality" -- already suggest, in the late 19th century, an emerging view of judges as a clique of silly dons, specializing in how many angels can dance on the head of a pin.

Bellamy was writing at a moment in American history when a nostalgic fantasy of the old justice of the West was beginning to fade. Passing away, and into legend, were men such as Roy Bean, the infamous "hanging judge" of Langtry, Tex. At the end of the 19th century, Bean became famous for dispensing justice from a saloon that also dispensed beer and liquor. Bean's view of the law, when not diverted by bribes, was straightforward and literalist in the extreme. When an Irishman killed a man of Chinese heritage, Bean supposedly consulted his law books and declared, "I find the law very explicit on murdering your fellow man, but there's nothing here about killing a Chinaman. Case dismissed."

Vernon Billings, of the Judge Roy Bean Visitors Center in Langtry, qualifies this a bit: "The newspapers said that a lot of the time when he read from his law books, they were upside down." Billings also says that a lot of visitors to Langtry think a little more Roy Bean-style justice is just what the country needs right now.

Bean was, in many ways, the living embodiment of a character from Mark Twain's 1872 comic travelogue "Roughing It." Twain's Slade was a gun for hire, "whose energetic administration had restored peace and order to one of the worst divisions of the road." But, like Bean, he was little better than the outlaws he was supposedly keeping in line. In one of the most remarkable scenes in Twain's book, the real law, a gray, dull thing encroaching on the once lawless West, finally catches up with him. Slade, a de facto justice of the peace, is hanged in the presence of a colorless judge whom he once threatened. There's a pathos, a nostalgia to these pages that suggests they might well be America's own version of one of the great literary legal scenes in Western literature: the final pages of Aeschylus's "Oresteia," in which the avenging furies, who harry the guilty, are sent underground, in favor of a new, more legal system of justice in Athens.

The aristocratic figures who would replace the Roy Beans, in literature and in reality, were often presented in American literature as slightly ridiculous and detached from society -- characteristics that would darken into the rhetoric we hear today about elitist judges out of touch with American values. In Willa Cather's "A Lost Lady," a judge is marked as an aristocrat because he's from Virginia, and because he held on to a dusty library of books: "He had brought them West with him, not because he read them a great deal, but because, in his day, a gentleman had such books in his library, just as he had claret in his cellar." Twain, in "Pudd'nhead Wilson," gives us another aristocratic judge -- like Cather's character he's also from Virginia, a marker of the old American aristocracy -- who is the founding member of a free-thinkers society: "he was the person of most consequence in the community, and therefore could venture to go his own way and follow out his own notions."

These two archetypes, the judge as law-giver, Solomonic provocateur, justice of the peace, and the judge as independent aristocrat, survive intact. All the high-handed dispensers of fast justice on afternoon television, the Judge Judys and Roy Browns, are essentially derived from the fantasy of frontier justice. And all of the judges caricatured today as aristocrats, tyrannically overruling the popular views of common, simple people, are the sad, inevitable extension of Cather and Twain's Virginians with books. But the argument, today, has moved on from these slightly eccentric individuals to a sense, among many on the right, that it is the judiciary itself that is corrupting.

"There is a culture that has grown up over a long period of time, that really has led many judges to believe that they are not mere mortals," says Don Feder, who helped organized last month's "Confronting the Judicial War on Faith" conference. "It is probably subconscious, it is probably something that they never express, or consider in their conscious mind. [But] a lot of judges really believe that they are God, that being appointed to the bench is like being canonized in the Catholic Church, or being deified." Asked what causes this transformation, which he compares to the Roman emperors declaring themselves gods, Feder argues that it's because they adopted "the views of the people they talk to at Georgetown cocktail parties, the views of the cultural elite."

Judge Boyce F. Martin Jr. of the U.S. Court of Appeals for the 6th Circuit says he thinks, if anything, the federal judiciary is much less upper-crust than in the past. "It is far more egalitarian today than it was 40 years ago," he says, with the perspective of 20 years on the Court of Appeals. "In the 1960s it was white, male and moderately weighted towards Protestantism." He argues that President Bush, following in the footsteps of predecessor Bill Clinton, has moved away from the "old way of doing things," which was to appoint the senior partners of blue-chip law firms.

But Judge Gerald B. Tjoflat, of the 11th Circuit Court of Appeals, points out that there are also issues of language that color the public's perception of the judiciary. "Sometimes judges are their own worst enemies," he says. "You don't have to be condescending, but it takes skill. The last thing you want is the reader, because of rhetoric, or language, to be shut off halfway through the decision and just put the paper down." Too many judges, in Tjoflat's view, write without sensitivity to the public's broad sense of right and wrong, and discerning nose for egregious injustice.

It's curious in Feder's language of deification and canonization, in Cornyn's reference to "high priests," the degree to which anti-judicial rhetoric borrows the language of anti-Catholicism. It's especially odd, today, that these (perhaps subliminally) anti-Catholic ideas persist in a debate that has aligned Catholics with traditional social conservatives over cases concerning abortion, homosexuality and euthanasia. The Catholic Church, though it may today be in agreement with conservatives on many social issues, has long been on the receiving end of rhetoric remarkably similar to that being directed at the federal judiciary. It has been derided as anti-democratic, for standing apart from the mainstream of American life, for importing "foreign" elements into American culture, for being intellectually superior, and governed by rules and values characteristic of an arrogant, priestly class.

Is this anti-Catholic terminology merely accidental? All the derisive talk of elite priesthoods is probably meant as no particular slight to Catholics. But that might be of little comfort if the interests of the Catholic Church and anti-judiciary activists ever diverge -- if, for instance, the Church (or any other church) ever needs to rely on the federal judiciary to protect it from legislative persecution. And if the anti-elitist rhetoric directed at judges today isn't just an occasional flare-up of ire sparked by particular decisions, but part of a broader ideological agenda within American public life, then other institutions that resemble the judiciary, and the Catholic Church, may have reason to be concerned as well.

Academia, which is also an institution set apart from the mainstream of American life, given to unpopular pronouncements and governed by rules that elevate and protect for life the tenure of often arrogant individuals, has already found itself under legislative attack. The leveling power of untrammeled democracy has a voracious appetite -- which is one of the arguments for creating spheres that are protected from its power.

© 2005 The Washington Post Company