Monday, March 27, 2006

The Lonely Courage of a Patriot

“It's a daunting challenge – as we are finding out on a
daily basis – to establish an independent judiciary that
would be able to apply the rule of law ... in societies
that have not known such force for generations, if at all.
But the rule of law is a cathedral that we have to build,
brick by painstaking brick.”
Chief Justice John Roberts
Reagan Library, March 8, 2006

Cambodia, China, Ecuador, Thailand, the countries of the former Soviet empire – these are the “societies” Chief Justice Roberts named. However, with Afghanistan and Iraq at war with themselves and with “foreign jihadists,” anyone reading the daily press ought to automatically add the U.S. to the list – and ahead of these two factionalized countries.

I do concede the categorization is not quite the same. Today’s challenge for the United States is not “establishing” but maintaining and even protecting the independence of the judicial process and those constituting the judicial establishment. For the judiciary is under attack, figuratively and physically.

What is worrisome is that the House of Representatives, led (until recently) by Tom DeLay, is a major source of the attacks against the judiciary. For example, in March 2003, when the Ninth Circuit Court of Appeals ruled that “under God” in the Pledge of Allegiance was a “profession of religious belief, namely a belief in monotheism,” right-wing ideologues were outraged. Delay told reporters that it was time for Congress “to limit the jurisdiction of the judicial branch” or impeach judges whose rulings do not conform to the prevailing (i.e., his) ideology.

This was not DeLay’s first frontal assault on the federal bench. Saying that “judges needed to be intimidated,” Delay introduced legislation in 1997 that would have set term limits on federal judges and restricted judicial latitude in death penalty cases. Claiming “intensive research” into the “attitudes” of many jurists, he published a list of “activist” judges – which again translates into those whose rulings deviate from DeLay’s views.

Impeachment of judges, like impeachment of the president or vice-president, is a remedy for gross abuse of office, not for “rectifying” disagreements of law. Tom DeLay would also leave it to Congress to decide on an ad hoc basis when a ruling was grounds to initiate impeachment proceedings. Similarly, the right’s other “remedy” – elections of federal jurists for set terms as is the case with nearly 90 percent of state judges – would undercut judicial independence, not least because of the difficulty in defining “constituencies” and the distractions of campaigning and fund-raising..

What is more worrisome is the apparent laissez faire attitude of the U.S. public to these rhetorical threats to judicial independence and co-equal status with the legislative and executive branches. One of the perceived injustices leading to the Revolutionary War was the lack of redress for inequities in the law as applied and enforced in Britain and in the colonies. Moreover, unlike the House and, to a lesser extent, the Senate, courts operating according to the rule of law ought to be insulated from popular pressure and the “threat of threats” when issuing an unpopular ruling.

We too often forget (if we ever knew) that the “rule of law” as an operational facet of the social contract between ruler and subject emerged only in the 17th century. Indeed, the British monarchy’s “Star Chamber” (akin in its secrecy to our Foreign Intelligence Surveillance Act courts) was only abolished in 1641 during the reign of Charles I – and precisely because it was viewed by Parliament as enforcing the monarch’s high-handed rule.

What is most worrisome is how fast and how far we have moved away from what Chief Justice Roberts called the “cathedral” – the rule of law – since 9/11. Congress and the White House continue to play the national security “fear” card even as they dismantle the cathedral of the rule of law. And the public is so intimidated by “not if but when” rhetoric that the majority stand by even as the cathedral’s bricks are used to build the very road down which Congress and the White House are hi-jacking our civil, civic, and political rights in the name of “security.”

A little more than a year ago, events moved with tragic consequences from the rhetorical to actual attacks. When the final court ruling in the Terri Schiavo “right to die” case was announced, Tom DeLay pronounced that “The time will come for the men responsible for this to answer for their behavior.” While the Schiavo jurists have not become targets, Fate nonetheless stepped in, converting words to deeds. First, in Illinois, the husband and mother of Federal Judge Joan Lefkow were murdered in the Lefkow home by unknown assailants. Although no direct link could be made with a strongly racist group against whom Judge Lefkow ruled in a 2002 case, the killings were applauded by white supremacists. Then, in Georgia just a few days later, State Superior Court Judge Rowland Barnes and others in his courtroom were killed after a prisoner seized a deputy’s gun.

The degree of concern for the continued independence of the judiciary from both psychological and physical assault prompted public warnings from Justice Ruth Bader Ginsburg and recently retired Justice Sandra Day O’Connor. Ginsburg said she and O’Connor had been targeted with death threats on a right-wing internet site that – ironically – called on its subscribers to be more than “armchair patriots.” O’Connor, for her part, warned her listeners that “We must be ever-vigilant against those who would strong-arm the judiciary.”

(As a matter of record, Title 18 U.S.C. §115 (a)(1)(B) makes it a felony for anyone to “threaten[s] to assault…. or murder, a United States judge… with intent to retaliate …. on account of the performance of official duties…” )

At stake for both Ginsburg and O’Connor is a foundational principle of British-American jurisprudence: judicial immunity from any liability stemming from decisions in the cases a judge hears. And their concern is well-founded. This November, South Dakotans will vote on a proposed state constitutional amendment creating a new independent forum or “branch” of government empowered to bring legal charges against any judge whose rulings do not accord with the Constitution or the people’s will – interpreted, of course, by those selected as “reviewers.” Under the proposal, three “misrulings” and the jurist can be sacked. In addition, apparently to discourage any last minute judicial boldness, a judge facing dismissal may also lose half of her retirement.

By now the meaning of “The Lonely Courage of a Patriot” ought to be apparent. The phrase is Ronald Reagan’s from a 1981 White House gathering of lawyers and jurists, as recalled by Chief Justice Roberts. Each main word is indispensable.
- “Lonely” – something we all experience – is the condition of “lacking companions or companionship.”
- “Courage” – something we all like to think we possess – means “the quality of spirit that enables one to face danger or pain without showing fear.”
- “Patriot” – something we all claim to be – is defined as “one who loves and defends her or his country.”

If those are the words, the image is a composite represented by Nathan Hale, Tom Paine, Henry David Thoreau, Susan B. Anthony, Walt Whitman, Emily Dickenson, Chief Joseph, Elizabeth Blackwell, Black Elk, Jeanette Rankin, Rosa Parks, and all who identify with any one of those named. Putting it all in context, the phrase lauds jurists who refuse to be swayed by the public clamor or political pressures of the hour as they interpret and apply the Constitution, weigh the intentions and words behind and in the statutes enacted by law-makers, and review the executive’s actions in enforcing the laws equitably.

Outside of Supreme Court justices, most jurists are not well-known. Most may prefer such semi-anonymity. Yet the judicial branch must be transparent in its work, for other than a citizenry aroused by the excesses or the abuse of power by the legislative or executive branches, the courts are the arbiters of power in our society. In this role, those who sit on the Supreme Court are the final, thin black line protecting and defending individual rights and freedoms against an overbearing government.

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