Balkinization: Judicial Intimidation

Comments:

I agree that Sen. Coryn's speculation about the cause of attacks on the judiciary is largely, if not wholly, refuted by the facts of each of the recent cases that I am aware of.

I also agree that it is irresponsible to offer up what could be interpreted as a "I wonder if they brought this on themselves" line of rhetoric, though I don't think that was the explicit point he was making or at least wondering aloud about.

What I think makes Balkin's critique unfair, though, is that he doesn't provide any context for the single paragraph that he singles out by providing a link to, or even discussing, the other four pages of the Sen.'s remarks which were aimed at standard (at least for conservatives)concerns that the judicial branch has assumed a role in American policy-making that exceeds the authority that they have under the Constitution.

It is also unfair to characterize the Sen.'s remarks as a veiled threat to the judiciary, when he explicitly stated that violence against any judge is unjustified. His remarks are certainly no more menacing or threatening of judicial independence than Sen. Shumer and Kennedy's constant reminders that you cannot be a Supreme Court Justice unless you worship at the altar of Roe v. Wade or the unbelievable bile spewed at Clarence Thomas or Robert Bork.

Though I wouldn't hold my breath waiting for Prof. Balkin to find any time for a few lines of righteous indignation at any of the left's conduct or statements about the judiciary.

# posted by

mjh21 : 1:49 PM

A second point (set of points?) is that everyone on the left is wailing in the wind about Rep. Delay's comments that the judges in the Schiavo case should be held accountable. Are judges beyond criticism? Specifically, all of the judges for the state of Florida are elected officials. Why can't they be held accountable by political opposition if the legislative branch believes they are acting extra-judicially (The state court's striking down of the Florida legislature's "Terri's Law").

As to the federal courts, why is it the end of the republic for congressional leaders to be miffed that the federal courts arguably ignored the language of a statute that was lawfully enacted by both houses and signed by the President? The statute was never declared unconstitutional and supposedly benefit from a strong presumption of constitutionality. Why can't the federal courts be taken to task for ignoring a duly passed law? (A law that I did not agree with by the way)

Is the left saying that the other two branches of government have no recourse short of impeachment when they honestly believe that courts are improperly asserting powers that they do not possess? Would the same people bemoaning Rep. Delay's comments say congress should be a silent, unquestioning subject of whatever the courts decree? Would you then support the congress not criticizing the courts but instead stripping jurisdiction away from them pursuant to Art. III, Sct. 2?

I'm not suggesting that any and all rebukes toward the judiciary are meritorious or that they should be encouraged. But if the left is going to scream like hysterical old women every time big bad elected Republican officials (Delay) say that a court has gone too far, what is the alternative they are suggesting - sit back silently and swallow whatever the courts feed the two inferior branches?

# posted by

mjh21 : 3:16 PM

mjh21, you can start holding your breath. I denounce any attempt by liberal or left wing politicians-- or moderates for that matter-- to insinuate that judges who exceed their authority under the Constitution bring violence on themselves. If you can cite to some examples, I'll be happy to denounce them on the pages of this weblog.

# posted by

JB : 3:24 PM

Willie Brown, then mayor of San Francisco on Clarence Thomas:
"a shill for the most insidious form of racism, but also a man whose views are legitimizing of the Ku Klux Klan" who should be reduced to talking only to white conservatives," and must be shut out by the black community."

Columnist Julianne Malveaux on Justice Thomas:
"I hope [Thomas’s] wife feeds him lots of eggs and butter, and he dies early, like many black men do, of heart disease. . . .He’s an absolutely reprehensible person."

Missouri Congressman William Clay labels Justice Thomas (and black conservatives) "Negro wanderers" whose goal is to "maim and kill other blacks for the ratification and entertainment of ultraconservative white racists."

Ted Kennedy on Robert Bork:

"Robert Bork's America is a land in which women would be forced into back alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids..."

One could argue that statements calling federal judges akin to racist, murderers, advocates of a rouge police state, promoters of the KKK and advocating for their social ostracism or death, might, just might, discourage members of the judiciary, particularly members who would like to someday serve on a federal court of appeals or even the U.S. Supreme Court, from exercising judicial independence at the expense of having their reputations eviscerate by democratic and left wing officials and pundits.

Whatever you might think about Sen. Cornyn's remarks, what comes at conservative judges from the left aren't mere insinuations; they're character assassinations.

# posted by

mjh21 : 5:07 PM

You've lumped a bunch of different types of statements together, mjh21. Malveaux wishes Thomas dead at the hands of his wife. She says he deserves to die, and that's reprehensible. Brown's calls Thomas a shill for white racism, and says Thomas should be ostracized in the black community. That's wrong, but it's not a threat of violence or wishing Thomas dead like Malveaux's. Clay's statement is just outrageous and wrongheaded.

Kennedy's statement, made in the middle of the campaign against Bork's nomination, is hyperbole, but it is simply not in the same league as the others-- he's pointing out the consequences of Bork's views on what statutes would pass constituitonal muster. Maybe you disagree with Kennedy's judgements, but there's no threat here. He thinks Bork would be a terrible Justice who would undermine constitutional liberties in this country. On that particular point, I happen to agree.

You object to character assassination of sitting judges. That's fine, but it's not what I'm objecting to-- veiled threats against sitting judges. Vituperative criticism of judges, even if unfair, doesn't undermine judicial independence in the same way that threats of retribution and apologies for violence against judges do. If you disagree with me, and think that judges are just as cowed by unfair and caustic criticism as they are by veiled threats of retribition and apologies for violence against them, you're entitled to your opinion. But in my view it is the latter that deserves special condemnation, whether it is done by people on the left or on the right.

# posted by

JB : 10:40 PM

Fair points, and a good and honest debate.

However, your original post was neither fair nor honest (though I'm not accusing you of being intentionally dishonest) because it selectively picked out one sentence out of a four page speech which, you even admit only insinuates a connection between activism and violence against judges, while omitting the fact that in the very next sentence Sen. Cornyn affirmatively states that there is never a justification for violence against a judge. Still further, as I'm sure you are aware by now, Sen. Cornyn emphatically denied purposefully making any linkage between activism and violence against judges in newspaper interviews and a speech on the Senate floor yesterday. A fair debate on Sen. Cornyn's remarks would also include context and subsequent clarifications by the speaker (I do recognize you are busy and I think your website does a great service to legal-minded folks by allowing a discussion forum for just those purposes).

But, returning to Rep. Delay's comments, I ask you or anyone else two questions:

If you believe (as reasonable people can and do) that the Florida courts and the Federal Courts (M.Dist of FL and the 11th Cir.) exceeded their authority in one, striking down "Terri's Law" (FL courts) and two, ignoring the call for de novo review of the evidence in the statue the congress passed (the federal courts), what is wrong with condemning the acts of the state judges, who are elected officials after all, and criticizing the federal courts.

1. If that is improper, then what means (I doubt that you are advocating court stripping legislation) do the two elected branches have when a state or federal court is (arguably) acting improperly?

2. How is it that Rep. Delay's remarks, which are unquestionably a direct criticisms, and Sen. Cornyn's statement, which is at best innuendo, are more damaging to judicial independence than the daily castigation of conservative judges and appellate court nominees? (And upon request I can provide reams of horrendous things said about the judges who are currently being filibustered and conservative Justices like Thomas and Scalia).

I never hear the left go into chicken-little mode about the independence of the judiciary when conservative judges are attacked for their views and decisions.

# posted by

mjh21 : 10:05 AM

That duely enacted law said in effect that the Shavino case could be reviewed again. But, in the case of a review, what should have been reviewed.

Appeals courts rule on the correctness of interpretation of the lower courts ruling. In the Shavino case, the ruling was that it was a state issue. That was ruling prior to the law enacted by Congress and signed by the President. The law provided no new perspective from which to review the case, thus no review was possible. And, the law was just grandstanding. It was just for show. It was just to say that the Repubs are on the side of the right to life, theocracy pushers.

There was absolutely no enactment of any provisions on which any review of the case was possible. The courts did as they were directed by the Congress.

Appeals under due process are not "emotional" appeals.

Judges to not legislate as the right asserts. Judges do not express their own opinion. They follow precident. They are tightly constrained. And, the issue under review is very small.

The grey areas in law that generate the issues reviewed under appeal are put there by legislators.

It is not necessary to get more conservative judges to overturn Roe v. Wade, for instance. What is necessary is for Congress to quit hiding behing the courts, so they can say to their constituents, no I didn't do that, the court did that. Maybe the people who should be accountable should be the Republican legislators.

# posted by

Dave : 4:00 AM

Senator Edward Kennedy -- "Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, children could not be taught about evolution."

So, are we ready to denounce Swimmer Ted?

# posted by

Don M : 5:45 PM

What I would like to see is different court systems.

A Federal Criminal Court System.
A Federal Contract Court System.
A Federal Liability Court System.

In England there was several courts, each with its own powers, laws to enforce, and areas of responsibility. Then the Judges could actually become as expert at an area of the law as the attorneys who appear in front of them. The most famous of the English courts was the Star Chamber court, for that was where the nobility had to appear alongside commoners.

Having a contract court system would permit each contract to pay a tax of some small percent of the maximum gross value of the contract. That would fund the criminal court.

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