Over the weekend, Timothy K. Lewis, a former judge with the U.S. Court of Appeals for the 3rd Circuit, wrote:
It is perfectly legitimate for anyone, including politicians and policymakers, to voice their disagreement when a court has spoken.
But to threaten the judges who issued an unfavorable decision, or to simply refuse to comply with a duly issued mandate, falls outside the bounds of appropriate and constitutional conduct.
As a citizen and as a former federal judge, I am alarmed at the trend among state legislatures, governors, and even the President to challenge the independence of our nation’s judiciary. I am appalled at the blatant disregard for its historic institutional role as a check on the executive and legislative branches. And I am worried about the implications.
The most recent example is still unfolding in my home state where, last week, Pennsylvania State Senate Pro Tempore Joseph Scarnati declared his open defiance to a decision handed down by the Pennsylvania Supreme Court.
Since then, matters have gotten considerably worse. Sen. Patrick J. Toomey (R-Pa.) started hinting about impeaching the state court justices. He phrased it as beginning a “conversation,” but the notion that judges should face impeachment when their decisions don’t line up with politicians’ partisan wishes is a dangerous one, contrary to our system of checks and balances. That Toomey, a U.S. senator, would go after a state court in such a manner also defies what used to be a conservative principle, federalism. (The state court ruled on the basis of the state constitution; for that reason, the U.S. Supreme Court declined to hear the case. For the same reason, Toomey would be well advised to butt out.)
“Look, I think it’s inevitable that that conversation’s going to take place,” Toomey said. “I think state House members and state senators are going to be speaking amongst themselves and their constituents, and the fundamental question is does this blatant, unconstitutional, partisan power grab that undermines our electoral process, does that rise to the level of impeachment?” Inevitable? Well, sure, when partisans start suggesting that impeachment is an appropriate remedy, conversations have been known to start.
Renato Mariotti, a former federal prosecutor and a Democratic candidate for Illinois attorney general, tells me: “The Pennsylvania Constitution permits impeachment for ‘misbehavior in office.’ The Pennsylvania Supreme Court didn’t engage in misbehavior — the justices did their jobs.” He adds: “The reason Pennsylvania Supreme Court justices serve lengthy terms is so they’re focused on doing their jobs, not partisan outcomes. Impeachment shouldn’t be used as a tool to punish judges for decisions we don’t like.”
The urge to retaliate against judges, Lewis suggests, smacks of Southern defiance of Brown v. Board of Education. (“The late Strom Thurmond’s ‘Southern Manifesto’, drafted in opposition to the Supreme Court’s landmark ruling in Brown vs. Board of Education, also accused the Court of a ‘clear abuse of judicial power.'”) We are also reminded of right-wing pols who threatened to remove state court judges or defy decisions on gay marriage.
“Impeachment is a severe remedy to be used for serious misconduct. It would be really abusive to impeach judges because we don’t like the decisions they make, especially the partisan implications of that decision,” says Michael Waldman, president of the Brennan Center for Justice at New York University. “I have a hard time believing they would actually go ahead with this. But a United States senator, when asked, should say ‘No, impeachment for partisan reasons is inappropriate,’ not ‘Hmm, let’s think about it.’ ”
As Lewis points out, there is a pattern here, not only in the states but also in rhetoric emanating from the White House:
In North Carolina, the legislature spent the better part of last year trying to pack the courts with their own partisans by putting itself in charge of appointing judges. This was met with fierce resistance by constituents. In Kansas, the Governor and several members of the state legislature waged a campaign against their state’s Supreme Court Justices so they could appoint their allies to the Court. Once again, an informed public responded.
They re-elected each of the targeted Justices. I believe these resounding responses demonstrate that the public understands the importance of a system of checks and balances. I also believe it shows how seriously the public takes any threat to judicial independence.
He also took on President Trump, who “has repeatedly attacked the federal judiciary, including personal attacks on judges overseeing cases in which he is a party.”
Beyond judges, Trump, of course, has sought to discredit the entire notion of nonpartisan administration of justice. He has made wild accusations against the FBI. He reportedly told the FBI to lay off Michael Flynn and has been publicly baiting the Justice Department to investigate Hillary Clinton and the Obama administration. He pardoned former sheriff Joe Arpaio, who had been convicted of criminal contempt. In every instance, Trump has sought to break down the arm’s-length relationship with the Justice Department that other presidents have adhered to and/or sought to undermine the legitimacy of the courts. Waldman notes of the attack on the courts: “This is all part of the erosion of vital democratic norms. Everything gets reduced to brute politics.”
In short, once the president sets the pattern, others will follow, whether it is in attacking federal judges (“so-called” judges, as Trump would say) or state judges. Judges must resist the urge to slap back, and thereby reduce themselves to the level of political street-fighter. That then requires other government officials, the organized bar and ordinary citizens to defend the apolitical administration of justice and the independence of the courts. (The American Bar Association, which has a “rapid response” manual to address attacks on the independent judiciary, had no comment on Toomey’s remarks at this time; its president, who would normally be the one to comment, is traveling. We have not seen anything from the state bar of Pennsylvania.) So far, Trump has not hit a speed bump in his quest to mow down the judiciary, so he and other Republicans will continue to run roughshod over one of the jewels of our constitutional system.
UPDATE: Hilarie Bass, president of the ABA, has provided a statement, which reads: “The Pennsylvania Constitution specifies that public officials shall be liable to impeachment ‘for any misbehavior in office.’ In this case, there is no allegation of misbehavior. Rather, one party to the dispute believes the Supreme Court has overstepped its authority in deciding the case. The remedy is appeal. Above all else, our American democracy rests on the rule of law and the independence of the judiciary to interpret the law free from political interference or threat.”
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