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Copyright 2005 The Baltimore Sun Company
The Baltimore Sun

May 15, 2005 Sunday


LENGTH: 1721 words

HEADLINE: Courts are ensnared in a thicket of politics;
Justice: The rhetoric is hotter than any time since the nation's early days.



The rhetoric is hot. The federal judiciary has "run amok." It is "out of control," "arrogant ... unaccountable." Those who stand in the way of changing it are threatened with "the nuclear option."

Such talk about the judicial branch has not been heard in the nation's capital since ... well, since Thomas Jefferson took on John Adams.

Fights over the judiciary are nothing new. Jefferson was incensed at his predecessor over this issue.

But that was when these institutions were not fully formed. Now they are a well-established and fundamental part of the country's system of governance. And that means there is something different about the current heat in Washington over the judiciary.

"There certainly is a long history of partisan attacks on the judiciary, so what is going on now is not altogether new," says Thomas Keck, a political scientist at Syracuse University.

"But the current attacks are particularly strident, they are particularly well-organized and developed, and they are being carried out by leaders of the governing party," he says. "It does seem to be one of the most significant examples of such attacks in American history."

Charles Geyh of Indiana University's law school agrees. "It is not just the isolated decision that is attacked, it is judges generally."

Geyh says it now is assumed - as it never was before - that judges make virtually all decisions for political reasons. "So, because we all know that these decisions are primarily political, the law ends up taking a back seat to politics."

The search for a new judge becomes a matter of finding the right political stance, not the right legal mind.

Military historians might compare what's going on in Washington to the first day of fierce fighting at Gettysburg - the two armies didn't settle the fight that day, but they determined how the rest of the battle would be fought, the Union on the high ground and the Confederates attacking.

These judicial fights are equally fierce because they are setting the field of battle for the next Supreme Court nomination. Chief Justice William H. Rehnquist is suffering from cancer and is expected to leave the bench soon. President Bush will probably have the opportunity to elevate a justice to chief justice and fill a vacancy. In preparation for that fight, each side is trying to put the other on the defensive.

One arena of the preliminary battle is a handful of appointments to lower courts sent to the Senate by Bush. The Democrats have either filibustered or threatened to filibuster a number of them. Republicans are incensed, discussing a change to Senate rules to get rid of the venerable filibuster for judicial nominees - the so-called nuclear option.

The Republicans say that all judicial nominations deserve an up-or-down vote on the Senate floor, though during the Clinton administration they used the committee system to see that many nominees never got such a vote.

And, though Republicans have charged that the filibuster was never before used to block a judicial nomination, in 1968, Republicans successfully filibustered President Lyndon B. Johnson's attempt to name Abe Fortas as chief justice, replacing Earl Warren.

The rhetoric over the stymied appointments is tame in comparison with what emerged after federal courts refused to interfere with the process that led to the death of Terri Schiavo, despite being virtually ordered to by Congress. One Republican senator from Texas even appeared to express sympathy for two recent deadly attacks on courts and judges.

"We seem to have run through a spate of courthouse violence recently. ... I wonder whether there may be some 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 and builds to the point where some people engage in violence," Sen. John Cornyn said.

Another Texan, Rep. Tom DeLay, said recent court decisions "are not examples of a mature society, but of a judiciary run amok."

"The response of the legislative branch has mostly been to complain," DeLay continued in an address to conservative activists. "There is another way, ladies and gentlemen, and that is to reassert our constitutional authority over the courts."

DeLay seemed to be referring to what Jefferson did. The constitution provides only for a Supreme Court. Congress sets up the other courts. And it can dismantle them. Jefferson got Congress to repeal Adams' lame-duck measure creating federal district courts.

No one thinks Congress would resort to something like that today, but the fact that DeLay would even raise the possibility shows just how far down this road the country has traveled.

Courts have never been free of politics, but the current rhetoric makes some fear that the process is now so totally politicized that judicial appointments will be nothing more than win-or-lose battles between the parties.

"I don't think the public knows what it's asking for if it says it wants judges to be accountable to public opinion," says Paul Brace, a professor of political science at Rice University in Houston. Brace says the judiciary is often - by its nature - a brake on public opinion.

Federal judges can play that role because they have lifetime appointments. Only impeachment - a rare occurrence in the nation's history - can remove them from office.

But that is not to say that they ignore public opinion. Keck of Syracuse points to studies that show Supreme Court decisions follow the election returns.

"If there is something the majority of people in the country really want, it is not likely that the Supreme Court is going to hold out against it very long," he says.

Richard Davis, a political scientist at Brigham Young University, agrees. "The courts have always been primarily a majoritarian institution," he says. "That's just reality. They live in a political environment. They have to gain public support to be legitimate. They cannot, on a constant basis, buck the public will."

The founding fathers tried to insulate all institutions of the federal government - not just the courts - from the public will because they feared direct democracy would lead to mob rule. But that did not last.

When the Constitution was written calling for the president to select members of the Supreme Court and the Senate to confirm, that president was chosen not by the people but through a complicated secondary ballot. And senators were not directly elected but picked by state legislators.

"Both institutions - the president and the Senate - were more distant from the public 200 or even 150 years ago than they are today," says Davis. "So that has drawn the public one step closer to the process of judicial selection than it was in the past."

Add to that televised hearings and constant polling, and "politicians are kept on a fairly short leash," Davis says.

That leash is tugged the hardest when positions on the Supreme Court are at stake. Many point to President Ronald Reagan's failed nomination of Robert Bork as changing the game. Bork opponents did not just lobby the Senate but took their fight directly to the public. Clarence Thomas, nominated by the first President Bush, faced a similar battle.

For much of the country's history, the Supreme Court had a low profile. The public paid attention when a decision was at odds with prevailing opinion, such as in the 1930s when key parts of President Franklin Roosevelt's New Deal legislation were struck down.

Twenty years later, the disconnect was mainly in one region, the South, over the 1954 decision desegregating public schools.

That decision started the court down a path of taking stands in more areas of society, in part because the justices wanted to go there and in part because federal legislation was taking on issues once left to the states.

"In the last 50 years, the Supreme Court has become a constant presence in American life in a way it never was before," says Davis. "For that reason, courts have much more of a connection with the public."

Combine this increased presence with a divided country - over such things as the Schiavo case and abortion - and the result is the intense controversy over the judiciary.

Add to that a slowdown in turnover on the Supreme Court. Justices are appointed at a younger age. They live longer. And, knowing the politics of the situation, they don't step down if they don't like the politics of the sitting president.

Keck says the average in court history is a new appointment every 22 months. So, on average, every president made two appointments per term. But there has not been a new justice since Stephen G. Breyer was appointed by Clinton in 1994.

"You have to go back to the 1830s to find a period of time when there were no vacancies as long the one we have now," says Davis.

This heightens the pressure on the next nomination.

"When there hasn't been a vacancy for a long time, ... the pressure gets raised through the roof," Keck says.

For that reason, Davis, in his recent book, Electing Justice: Fixing the Supreme Court Nomination Process, proposes nonrenewable 18-year terms for justices, staggered so that there would be a vacancy every two years. The idea is to reduce the pressure on each appointment because there would be another one coming up soon.

Keck supports the idea. "If we were designing the Constitution from scratch, I think I would choose long, but fixed, terms," he says.

But Geyh notes that if the politicians really listened to the public, they would probably turn down the heat on the courts. He points to the polls opposing congressional attempts to interfere with the Schiavo case, polls that showed a huge majority of Americans think judges make decisions based on the facts and the law, not politics.

Even when the Supreme Court was making unpopular decisions about the New Deal, most Americans did not back Roosevelt's attempt to tamper with the institution by increasing its size so he could pack it with sympathetic justices. As with the Schiavo case, the public - if not politicians - seemed to understand that courts must answer to something other than popular opinion.

"You want judges who are guided more by the principles of law than by their popularity," says Brace, of Rice. "Who is going to look out for minority interests? Presumably the branch of government that is insulated from majority pressures."

GRAPHIC: Photo(s)
The statue "Authority of Law" outside the Supreme Court, which has not had a vacancy since 1994.

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