In Rare Appearance, 2 Justices Concur Against Threats to Neutrality
By Joan Biskupic
Two of the nation's Supreme Court justices mounted a vigorous defense of judicial independence today, criticizing people who would attempt to influence the rulings of judges either by political intimidation or campaign spending.
"The law makes a promise," Anthony M. Kennedy said in an unusually impassioned speech before a gathering of judges and lawyers attending an American Bar Association conference here. "The promise is neutrality. If that promise is broken, the law ceases to exist. All that's left is the dictate of a tyrant, or a mob."
"People's liberty and prosperity depend on a strong judiciary," added Stephen G. Breyer, who moderated a panel discussion on the subject. It is a rare forum that attracts even one Supreme Court justice, so it was especially unusual to hear from two members of America's highest court. But their appearance at the symposium is part of an unprecedented response by the bench to an equally unprecedented attack on the nation's courts in recent years.
Republican leaders in Congress have suggested that judges who issue unpopular decisions should be impeached. They also have proposed that federal judges, who are now appointed for life, face term limits, and some have offered legislation that would diminish a judge's authority. In a few cases, lawmakers have refused to confirm certain judicial nominees as a way of protesting what they call "judicial activism."
House Majority Whip Tom DeLay (R-Tex.) has been among the most visible in putting federal judges on notice that their decisions, particularly those that are unpopular with the general public, will be closely scrutinized.
Although the Republicans' criticism has focused mostly on judges they consider "soft on crime," both conservatives and liberals have launched attacks for particular rulings that they considered out of line. At the same time, the process for electing state judges has also come under scrutiny as those campaigns grow increasingly costly and vicious. Although federal judges are appointed by the president for life, most state judges ascend the bench or retain their posts only through elections.
Several speakers in the weekend conference here said the overall trend threatens the impartiality that is the hallmark of the courts and can lead judges to look over their shoulders.
"Each judge each day must renew her oath, must renew his oath" of fairness, Kennedy said. "After 20 years on the bench, it surprises me how often I have to examine myself" for any biases or prejudice that might creep into an opinion.
"This is not indecision," said Kennedy, a centrist with conservative leanings whose prolonged weighing of legal dilemmas has given him a Hamlet-like reputation. "This is fidelity to the law."
Kennedy said judges must stick with "constant, neutral principles," and not succumb to political pressure. The judiciary will not be valued, he warned, if people think it is merely "a power-grab in a black robe."
Turning to the states and increased campaign spending by special interests, Kennedy said it is wrong for attorneys to make contributions to judicial candidates and expect favorable rulings in return. "It demeans the profession," he said. "It stains the law."
The two-day symposium, sponsored by the American Bar Association and the University of Pennsylvania law school and attended primarily by judges and lawyers, is the first of a series of conferences intended to highlight the value of judicial independence and explore public attitudes toward the bench.
"Ultimately, our institutions rest on what hundreds of millions of people in this country think," said Breyer, who is among the more liberal justices on the nation's high court.
Breyer and Kennedy add their voices to that of Chief Justice William H. Rehnquist, a conservative who in defending the federal bench has said that the independence of the judiciary is "one of the crown jewels of our system of government today."
Abner Mikva, a former White House counsel, federal appeals court judge and congressman, said that complaints about "activist judges" resonate with some segments of the public who believe that judges are supposed to follow the views of the mainstream.
But one person's neutrality no doubt is another's judicial activism, and Mikva said judges and bar leaders "need a new way to communicate to the people . . . why judicial independence is good for them."
Those who have attacked the bench have latched onto several controversial decisions and judges to make their case. Among the most notable was a 1996 ruling by U.S. District Judge Harold Baer of New York to suppress drug evidence seized by police under what he said were questionable circumstances. His initial ruling, which he later reconsidered, was criticized by both then-Senate Majority Leader Robert J. Dole (R-Kan.) as well as the Clinton administration.
In another controversial case, Tennessee Supreme Court Justice Penny White lost a bid for reelection in 1996 after a public uproar over her vote to order a new death-sentencing hearing for a brutal murderer.
© 1998 The Washington Post Company