Monday, May 02, 2005

Angry at Rulings, Some Judge the Judges

ABC News
Angry at Rulings, Some Judge the Judges
Unpopular Decisions, Personal Grudges Bring Judges Under Fire -- Figuratively and Literally

- When Terri Schiavo died, House Majority Leader Tom DeLay, R-Texas, issued a forceful warning to certain judges.

"We will look," he said, "at an arrogant, out-of-control, unaccountable judiciary that thumbed their nose at Congress and the president."

From the most powerful leaders in Congress, including DeLay, to television ads run by conservative groups and their well-organized allies, judges are under withering attack in a new and escalating front in the culture wars.

"There's a level of invective and venom that's unprecedented historically," said Jeffrey Rosen of the George Washington University Law School. "There have been plenty of times when Congress has threatened the judiciary with impeachment, with bills to overturn its decisions. But the hatred and the desire to get a new judge if you don't like the results of the old judge seems to be new in some way."

One of the most recent symbols of this outrage is the Terri Schiavo case. The refusal in late March of judges -- liberal and conservative -- to bend to the will of Congress prompted DeLay to issue this blunt threat.

"We're going to start hearings on the definition of good behavior that's in the Constitution, as it comes to impeaching judges," DeLay said.

DeLay's conservative allies are willing partners in an ongoing campaign to impeach, recall or otherwise pressure judges with whom they disagree.

"They don't want to take direction," said David Barton of Wallbuilders, a group that seeks to draw attention to the religious roots of U.S. government. "As we've seen in recent weeks, they don't even want to take criticism.

When asked if judges should be independent, Barton added, " 'Independent' is an interesting thing, because if independent means unaccountable, that's wrong. We have no unaccountable branch."

The judiciary, according to the Constitution, represents an equal branch of government that by design is supposed to interpret the law, not bend the politics or passions of the moment.

"I completely agree that as a coordinate branch of government the judiciary is appropriately subject to criticism," said Kenneth Starr, a former judge who is dean of the Pepperdine University Law School, and was the independent counsel on the Whitewater investigation of the Clintons.

"But where we do, in fact, step over the line, in my judgment, is when we say, or our political leaders say, that we so fervently disagree that we think that impeachment is appropriate or necessary, when those judges are -- whether right or wrong -- exercising their independent judgment, under article three of the Constitution."

Activists Battle Judges

Over the years, only seven judges have actually been impeached in the House and convicted in the Senate. Most were for criminal misconduct.

But across the country, activists are attempting to oust judges who have issued rulings they believe are incorrect.

In Sacramento, opponents of gay rights are collecting petitions to recall a state Superior Court judge who upheld California's expansion of legal benefits for domestic partners. California Superior Court judges are elected by the voters, but a recall effort goes beyond simply trying to vote a judge out of office.

"He's making decisions for me that are supposed to represent the values of the voters of Sacramento County, and he's not," said Craig Deluz of the Judge Recall Committee. "And so, my main focus is on making sure we get him out of office."

But supporters of Judge Loren McMaster, who is not permitted to speak on specific cases, note that an appeals court has unanimously upheld his ruling.

"Any recall attempt on a sitting judge, based upon a decision that they have made, in my opinion, is an act of intimidation over judges," said Glen Craig, the former Republican sheriff of Sacramento County. "I mean literally, any group -- you pick a group: pick police, for example; police unions, very powerful, lots of money -- suppose they took on every judge that rendered a decision or a sentence that they didn't like.

"I would hate to live in a society where judges sitting there are fearful of being recalled, based upon an honest decision, a good-faith decision based upon the law," he added.

When a federal judge in Kentucky ruled displays of the Ten Commandments in public buildings are unconstitutional -- in a case now before the U.S. Supreme Court -- activists at a Washington conference called on Congress to remove her and any others who ruled the same way.

"The conservative charge that the courts are running amok and thwarting the will of the American people is flatly wrong," Rosen said. "Polls suggest that on all the great issues that people are all excited about, abortion, affirmative action, school prayer, the court is basically in tune with the views of a narrow majority of the American people."

'Nut File'

California appellate judge Alfred Goodwin -- who was appointed by President Nixon -- knows something about political pressure.

"I'm probably the first person since Adolf Hitler to be unanimously denounced by the United States Senate," he said.

In 2002, Judge Goodwin ruled that requiring students to say "under God" in the Pledge of Allegiance was unconstitutional -- a decision that was upheld by the 9th Circuit Court of Appeals before being overruled by the U.S Supreme Court. Within hours of Goodwin's decision, he was attacked from the Senate floor.

"I hope the Senate will waste no time in throwing this back in the face of this stupid judge," said Sen. Robert Byrd, D-W.Va.

"This decision is just nuts," said then-Sen. Tom Daschle, D-Neb.

The judge also received more than 10,000 letters protesting his decision.

"We filled one room in the San Francisco courthouse with that mail," Goodwin said.

But he accepts that criticism is part of the job -- even the occasional threat.

"My secretary keeps a 'nut file,' " Goodwin said. "When I get letters offering to kill me, I just give them to my secretary and say, 'Put it in the nut file.' "


Sometimes, though threats turn real. The recent murders of a judge in Atlanta, and the husband and mother of a federal judge in Chicago were apparently tied to personal grievances, not hot-button social issues. Yet, Sen. John Cornyn, R-Texas, recently ruminated about a possible link.

Cornyn mulled a possible "connection between the perception in some quarters on some occasions where judges are making political decisions, yet are unaccountable to the public -- that it builds up and builds up and builds up to the point where some people engage in violence."

Cornyn later backed off those remarks. But Supreme Court Justice Sandra Day O'Connor, citing an increase in threats, recently said, "I don't think the harsh rhetoric helps. I think it energizes people who are a little off-base to take actions that maybe they wouldn't otherwise take."

But other justices appeared to take the harsh criticism in stride, including Anthony Kennedy, the one some conservative activists call "the poster boy for impeachment."

"We learn of threats in different ways, often with letters -- and when we get those, we immediately turn them over to our people," Kennedy said. "It's healthy. It's very important. That's the democratic dialogue that makes democracy work."

For activists demanding more conservative rulings, it may be ironic that a clear majority of federal judges across the country have now been appointed by Republican presidents, including seven of the nine justices on the U.S. Supreme Court.

But with several of those justices in poor health and nearing retirement, the red-hot rhetoric over judges may soon get even more overheated.

ABC News' Chris Bury originally reported this story for "Nightline" on April 21, 2005.