|
Despite
SD Loss, J.A.I.L.4Judges Targets Florida Attorneys By Gary Blankenship If backers of an amendment known as J.A.I.L.4Judges succeed in getting their constitutional amendment on the Florida ballot, the state’s lawyers should be ready to lead a campaign to defeat it. The public face of that
campaign should not be judges and lawyers, but rather regular
citizens who would be adversely affected by the amendment that
nominally seeks to strip civil and criminal immunity from the
judiciary in cases where a special grand jury decides they have
acted improperly.
By Mark Anderson Backers of a South Dakota
initiative designed to reform the state’s courts by holding judges
accountable for their rulings are licking their wounds after the
amendment’s defeat at the polls. Organizers behind the measure said
they had to contend with a well-funded propaganda mill that ran
nonstop to defeat the proposed state constitutional amendment. Fight
Against 'Judicial Activism' The Associated Press WASHINGTON: Efforts to curb judges' independence suffered some Election Day setbacks, but supporters pledged to keep up the fight against a judiciary they say has lost touch with America. The problem, critics say, is that judges too often make laws rather than interpret them. On Tuesday's ballots, the possible solutions ranged from term limits to prison time for judges. All failed, most by wide margins. Judges say such efforts threaten their autonomy and some legal scholars see them as part of an organized campaign to persuade voters that judges, like legislators, governors and presidents, are policymakers who need political oversight. At the heart of the dispute is "judicial review," established in 1803 by the nation's third chief justice, John Marshall. It holds that the U.S. Constitution's balance of powers concept cedes to judges the authority to decide whether a law is constitutional. "It is emphatically the province and duty of the judicial department to say what the law is," Marshall wrote. The frontier of the anti-activist-judge movement was the north-central state South Dakota, where voters considered allowing judges to face lawsuits or jail time for their opinions. "People are not going to allow judges to take over this county," said Ron Branson, who conceived the South Dakota measure and is promoting it nationwide. "They talk about judicial independence, but they're getting involved in things they have no power to order." Nine out of 10 voters rejected the idea, but Branson predicted it would take hold in one of several states with active chapters in the "Jail4Judges" campaign. In Montana, just west of South Dakota, three Republican legislators backed a proposal that would have allowed judges to face recall for any reason. The measure was voted upon but the results were not counted because judges found fraud and deception in the petition drive. Supporters of the measure said it was just another arbitrary ruling by the courts. "We're not off-the-wall people. We're three leadership people in the Montana House of Representatives," said state Rep. Ed Butcher. He said he and his colleagues were trying to send a message that jurists "have to be judges rather than legislators." It is a familiar refrain in these debates. Critics, frequently conservatives, have used the phrase "activist judges" to refer to jurists they say legislate from the bench. President George W. Bush has used the term to criticize opinions such as the court-ordered legalization of homosexual marriage in the northeastern state of Massachusetts. The critique, however, is not new. President Theodore Roosevelt proposed recalling judges who had grown "out of touch with social needs," and Franklin D. Roosevelt contended the Supreme Court was acting as a policymaking body. "We must take action to save the Constitution from the court," he said. But anti-court sentiment is growing. The Justice at Stake Campaign, an effort to keep the judiciary independent, called the 2006 election "the most threatening election yet for fair and impartial courts." "I'm increasingly concerned about the current climate of challenge to judicial independence," retired Supreme Court Justice Sandra Day O'Connor recently told a gathering of state judges. "Unhappiness with judges today is at a very intense level." That unhappiness was clear in Oregon on the West Coast, where people wrote impassioned statements supporting a measure requiring that appellate judges be selected from diverse areas of the state. The courts currently are dominated by city judges who are reinterpreting the state constitution, supporters of the measure said. "The Oregon Supreme Court has substantially expanded the rights of criminals, limited the rights of property owners and limited the initiative process," Steve Doell, a victims-rights advocate, wrote for a voter's guide. "Many of the changes instituted by the court are more properly the responsibility of the legislature or of the people." A similar argument was used to support a Colorado proposal that would have imposed 10-year term limits on judges. Both measures failed at the polls. Federal judges have lifetime appointments, but many judges at state and lower levels must face the electorate periodically. The "activist judge" proposals reflect a political strategy, said University of Pennsylvania law professor Stephen B. Burbank. If voters are persuaded to see judges as representing constituents or policies rather than simply interpreting the law, it will be easier to pass laws limiting their independence, he said. Stegmeier:
Fight for Accountability Just Beginning Kate Turnbow Abortion
Cases Draw Throngs to High Court By Joan Biskupic WASHINGTON — The Supreme Court was packed and demonstrators gathered outside under drizzly skies Wednesday as the justices heard arguments in what probably will be two of the most significant abortion rights cases in decades. The disputes over Congress' ban of a procedure it calls "partial birth" abortion represent a key test of whether the court led by Chief Justice John Roberts will take a harder line against abortion rights now that Justice Sandra Day O'Connor, a key supporter of such rights, has retired. However, as the two-hour court session played out, neither Roberts nor the conservative justice who replaced O'Connor, Samuel Alito, were the key players. Instead, everything seemed choreographed around Anthony Kennedy, the justice who is at the ideological center of the divided, nine-member court. Kennedy, who has supported abortion rights but voted against striking down a state ban on "partial birth" abortion six years ago, is widely viewed as the key vote in the cases. As he seemed to struggle with whether the Republican-led Congress' ban on the midterm procedure should be upheld, lawyers in the case focused on him in their arguments. Liberal justices such as Ruth Bader Ginsburg and John Paul Stevens suggested the ban restricted the right to abortion and appeared to try to lure Kennedy to their side by asking leading questions of lawyers. In 2000, the court rejected state bans on "partial birth" abortion that did not include an exception for situations in which a woman's health was in danger. A key issue Wednesday was whether Congress can outlaw the procedure by declaring that it is "never" necessary for maternal health. Kennedy expressed concern about how often the banned method — known medically as "intact dilation and evacuation" or "dilation and extraction" — is used and whether alternatives are readily available. The procedure involves removing a fetus so it partially emerges from the vagina intact, rather than dismembering the fetus in the uterus. The court's 350-seat courtroom was filled; members of the public began lining up at 3:30 p.m. Tuesday for a chance to hear the arguments. Scores of protesters from both sides of the abortion debate, along with TV news crews and others who failed to get a prized seat inside, gathered in front of the building. The arguments were jarringly broken 40 minutes into the session by the screaming of a spectator who opposed abortion. Several police officers wrestled him out of the courtroom. Roberts, who appeared to support the ban, asked several questions, but the court's other conservatives were unusually quiet. Alito said nothing; the usually talkative Antonin Scalia made few queries. (Another conservative, Clarence Thomas, was absent because of illness; Roberts said Thomas would still participate in the case.) The conservatives seemed content to let U.S. Solicitor General Paul Clement defend the 2003 ban. "Congress was entitled to make a judgment … to ban a particularly gruesome procedure that blurred the line between abortion and infanticide," he said. Kennedy, who often votes with the conservatives, has vacillated on abortion. In 1989, he joined an opinion that would have undermined Roe v. Wade. In 1992, he reversed course and became the critical fifth vote to uphold Roe. In 2000, he split from his abortion rights colleagues and dissented from the ruling that said states could not ban the procedure without a health exception. Kennedy's comments Wednesday suggested he is not locked into that position, but it was unclear how he might vote. "In how many … instances is there serious health risk to the mother that requires the procedure, as opposed to (it) simply being an elective procedure?" he asked. Priscilla Smith, representing Nebraska physician LeRoy Carhart, said no hard data exist. But she said that for some doctors whose patients face cancer, hemorrhaging or other serious medical conditions, the procedure is common. Lawyer Eve Gartner, representing Planned Parenthood Federation of America, said that although the number of women affected by the ban might not be high, "in some cases, this procedure averts catastrophic health consequences for the woman." Some of Kennedy's questions suggested he was worried about the risks to women who might not have access to the procedure some physicians say is more protective of a woman's uterus. He also seemed concerned that doctors might inadvertently violate the law by starting to do one procedure, then ending up doing the banned one. S. Dakota
Voters Soundly Reject J.a.i.l. Measure By Monica LaBelle Sioux Falls, South Dakota -
An amendment that aimed to add a measure of accountability to judges
failed Tuesday. Amendment E, also known as
the Judicial Accountability Initiative Law, would have created a
special grand jury of South Dakotans to review complaints against
jurors, county commissioners, prosecutors, city councilors, board
members and judges - in essence, those with judicial immunity. Such consequences would
prevent people from serving as jurors or running for office,
creating a government gone amok, several voters said. "I thought it
was stupid. It shouldn't be on there," said Chris Schwartz, 18, of
Sioux Falls. "Nobody would be on a jury." However, voters who
supported the amendment said they couldn't ignore a judge's human
fallibility. Bill Stegmeier, the
amendment's sponsor, questioned the results. He said polls from
earlier this year indicated far greater support for Amendment E.
Stegmeier suggested there might be voter fraud. Barnett said that such a
claim was "an insult to the people and the voters of South Dakota." Judicial Accountability Amendment Crushed By Bill Harlan, A constitutional amendment to end "judicial immunity" in South Dakota was losing by almost a 9 to 1 margin Tuesday. With 801 of 818 precincts
reporting, Amendment E was losing 89 percent to 11 percent. It won
just 33,000 votes, 15,600 fewer than signed the petition to put it
on the ballot. J.a.i.l. Measure Rejected in Dramatic Fashion By staff and wire reports South Dakotans on Tuesday
soundly rejected a constitutional amendment that opponents said
would create chaos in the state’s courthouses and the halls of local
government. South Dakota Measure Puts Judges on EdgeBy Nancy McCarthy
While much of the nation is focused on who will win control of Congress in this month’s midterm elections, the state of South Dakota has become an unlikely testing ground for a judicial accountability measure that opponents charge will destroy the rule of law. And because it was written by a North Hollywood man who has tried unsuccessfully three times to place the measure on the ballot in California, it has state jurists worried that they may be targeted next. Officially called Amendment E, the initiative — the Judicial Accountability Initiative Law otherwise known as JAIL — is a constitutional amendment, needing only a simple majority to pass, that would create a special grand jury of 13 people that could investigate and indict sitting judges. The measure would strip judges of judicial immunity, exposing them to civil lawsuits and criminal charges for their decisions. And if the special jury finds a judge guilty three times, he or she will be removed from the bench and lose half their retirement benefits. The proposed amendment is retroactive. A handful of states have measures on their ballots this month that critics view as an assault on judicial autonomy. Amendment E in particular even attracted the attention of former Supreme Court Justice Sandra Day O’Connor, who called it “unusually venomous” and a challenge to the intentions of the Constitution’s framers in a recent Wall Street Journal opinion piece. “Although the amendment’s supporters claim they seek a ‘judicial accountability initiative law (JAIL), they aspire to something far more sinister — judicial intimidation,” O’Connor wrote. “Judges who are afraid — whether they fear for their jobs or fear for their lives — cannot adequately fulfill the considerable responsibilities that the position demands.” Both California Chief Justice Ronald George and Solano County Judge Scott Kays, president of the California Judges Association, also have spoken out about efforts to limit judges’ ability to make independent decisions. “We want judges to make decisions based on the facts and the law in each individual case and not make a popular decision but make the right decision,” Kays said. “These efforts totally undermine that independent decision making that we have come to know as the basis of our judicial system.” Indeed, the initiative has so alarmed many South Dakotans that a broad coalition, including lawyers, judges, corporate interests, teachers and elected and civic officials, has raised about $1 million to fight it. Tom Barnett, executive director of the South Dakota Bar Association, took a temporary leave of absence and is criss-crossing the state to campaign against Amendment E. “It destroys the rule of law, it destroys the equal application of law to everybody, it puts into the Constitution jury nullification and ultimately it will get the state of South Dakota sued,” Barnett said. JAIL is the brainchild of Ron Branson, a southern California minister, former prison guard and prolific litigant who founded JAIL4JUDGES, an Internet powered organization of about 2,000 members dedicated to ending “the rampant and pervasive judicial corruption in the legal system of the United States.” The measure, Branson said, is designed simply to hold judges accountable for their actions. “From my experience in the courts, I found that nothing works,” he said. “You argue A, B and C and the court deals with D, E and F. It’s just a futile thing. There’s absolutely no justice. The judges have their agenda and you’re not gonna change it.” Branson has a long history of courtroom experience and says he has appealed to the U.S. Supreme Court 14 times. By chance, he met Valencia attorney Gary Zerman in 1992, the two struck up a friendship and eventually drafted the Judicial Reform Act of 1996, the template for the South Dakota measure. But Branson said he was unable to collect more than 5,000 signatures to put it on the California ballot and two more attempts got no further. With the explosion of the Internet, Branson was able to attract followers to his JAIL4JUDGES Web site and says he now has chapters in every state. Filled with hyperbolic language, the site lists the many grievances imposed on “the people” by the government and calls Branson’s followers to action. Styling himself the Five Star National JAIL Commander in Chief, Branson, who sometimes wears a cluster of five stars on his shirt, modeled his organization on the Army. “We have it regimented from national to state to county,” he said. Undaunted by his failures in California, Branson connected with South Dakota businessman William Stegmeier, who bankrolled the effort there. “Bill came in as one of our jailers,” Branson said, “and eventually I appointed him as jailer-in-chief for the state of South Dakota.” Backers of Amendment E collected 46,800 signatures, well over the 34,000 needed to put a measure on the ballot. The state’s attorney general believes the initiative applies not only to judges but to citizens serving on juries, school boards, city councils, county commissions or similar bodies, as well as prosecutors. And Barnett says disgruntled litigants could sue people serving on those entities, and convicted felons could sue not only the judge who imposed sentence, but the prosecutor, the jurors and even the victim. All allegations are to be “liberally construed in favor of the complainant.” Jurors would be drawn from voter registration rolls and from those who submit their names. The system would be funded by deducting 2 percent of all judicial salaries throughout the state and placing the money in a trust account. Zerman, the southern California lawyer who helped write the South Dakota initiative, dismissed the possibility that anyone other than judges would be affected by the initiative. People who sit on civic boards “can be sued already,” Zerman said, adding that the word “judges” is repeated 35 times in the amendment. And the Amendment E backers are fighting charges that they are linked to conspiracy theorists, the patriot movement and tax protesters. In fact, the campaign recently distanced itself from the JAIL4JUDGES group and Stegmeier submitted his resignation to Branson. “Branson provided a template, has had nothing to do with campaigning or financing,” said Jake Hanes, a campaign spokesman. “Personally, I think he’s a bit of a publicity hound and a bit of a clown.” Amendment E supporters claim the measure is leading by a three to one margin, based on a September Zogby poll that did not ask directly whether voters favored the initiative. Barnett said his polling three weeks before election day showed 12 percent in favor of Amendment E, 46 percent opposed and 42 percent undecided. His theme in the campaign, he said, is “this isn’t about judges, it’s about us.” Secondly, he cautioned lawyers and judges to avoid the phrase “judicial independence,” because it translates into judicial activism or social legislation in many voters’ minds. “Voters want and expect that our courts fairly and impartially apply the law,” Barnett stressed. If the amendment succeeds, it will hearten the JAIL4JUDGES movement, which wants to place similar measures on ballots in other states, including California. It also likely will be tied up in court for years. If it fails, backers say it will be because of collusion between lawyers and special interests. Will they go to court? “I’ll answer that like the politicians do,” Branson said. “I’m not taking it off the table.” Former
Justice Warns of Threat to Judiciary Bob Egelko Former Supreme Court Justice Sandra Day O'Connor told a San Francisco audience Friday that judges are under political attack nationwide, and a ruling she endorsed four years ago is partly to blame. "I'm increasingly concerned about the current climate of challenge to judicial independence,'' O'Connor, who retired in January after 24 years on the court, told a gathering of state judges from around the country. "Unhappiness with judges today is at a very intense level."O'Connor, 76, spoke four days before voters in South Dakota will consider the "Jail 4 Judges'' initiative, which would create a citizens' grand jury that could authorize civil suits or criminal prosecutions against judges based on their rulings. Also on Tuesday, Colorado voters will decide whether to limit current and future judges on the state's highest courts to 10 years in office, a measure that would remove five of Colorado's seven Supreme Court justices within two years. No such measures are on the ballot in California, where the last backlash against the judiciary took place in 1986, when Chief Justice Rose Bird and two liberal colleagues were voted off the state Supreme Court in a campaign backed by prosecutors and business groups. No substantial opposition has surfaced to either of the two state Supreme Court justices seeking retention on Tuesday's ballot, Joyce Kennard and Carol Corrigan, or to any appellate justices. But Chief Justice Ronald George, who introduced O'Connor on Friday at the Grand Hyatt Hotel on Union Square, said that "no state can consider itself immune from some of the trends undermining judicial independence." Nationally, President Bush has denounced state judges who have ruled in favor of same-sex marriage, and congressional conservatives have threatened retribution against the authors of rulings on the Pledge of Allegiance and the Terri Schiavo life-support case. Rep. James Sensenbrenner, R-Wis., chairman of the House Judiciary Committee, has proposed creating an inspector general to oversee the federal courts. O'Connor said the judiciary is the weakest of the three branches of government, and therefore the one with "the greatest need to be defended.'' The executive and legislative branches have become the attackers, she said, so "the principal defenders are going to have to be the people of this country,'' with lawyers taking the lead. Judges should not be immune from "reasoned criticism,'' O'Connor said. But she said she was troubled by "increased partisan activity in judicial elections," with "large sums of money spent by special interests.'' A related development, she said, has been the proliferation of questionnaires sent by interest groups to state judicial candidates, asking their views on issues such as abortion, same-sex marriage and the death penalty. Those surveys are largely the result of the Supreme Court's 2002 ruling that judicial candidates had a constitutional right to declare their views on legal or political issues, O'Connor said. She was part of the court's 5-4 majority that overturned a judicial ethics rule in Minnesota that banned such statements. Some lower courts have since interpreted the ruling broadly to strike down ethical standards that prohibit judicial candidates from making campaign promises of how they would address particular issues. California has such a standard, but it has not been the subject of any court ruling. "That
(Minnesota) case, I confess, does give me pause,'' O'Connor said,
adding that she expects the Supreme Court to revisit the issue and
define the boundaries of free speech for court candidates. State Ballot Measures Challenge Judges' Power By Bill Mears Branson, his wife, Barbie, and attorney Gary Zerman, have waged a years-long, low-budget fight against judges and -- Branson says -- "a judicial system that just doesn't work." Branson's weapons are his computer, where he publicizes his crusade through his Web site jail4judges.org, and the ballot box. His idea for a "judicial accountability" initiative will be voted on Tuesday in South Dakota. Known as Amendment E, the measure would create a special grand jury to indict state judges if there are allegations they have violated their duties. It also would strip them of their immunity from civil lawsuits. Civil and criminal sanctions could follow. It is believed to be the first proposal of its kind in the United States and is among several judicial initiatives on ballots around the country next week. "It was just totally futile to go through the courts any more, and that's why I left that process and I decided to write this initiative and go directly to the people," Branson told CNN. "I'm a voice of a system gone out of control." Much of the public frustration was galvanized in the case of Terri Schiavo, a severely brain-damaged woman in Florida who was the object of a legal tug-of-war between her husband and parents. State and federal courts allowed her husband, Michael, to have her feeding tube removed, despite attempts by Florida officials -- prompted by her parents -- to take control of her medical care. Congress hastily passed a measure ordering the federal courts to intervene. The political momentum from Branson's JAIL (Judicial Accountability Initiative Law) movement is dismissed by many in the legal community, and has caused concern over rhetorical attacks on judges and judicial independence. Retired U.S. Justice Sandra Day O'Connor began a recent editorial in the Wall Street Journal by mentioning Branson's group. "It is tempting to dismiss this proposed amendment as merely an isolated bout of anti-judge angst," O'Connor wrote. "But while the JAIL 4 Judges initiative is unusually venomous, it is far from alone in expressing skepticism of the judiciary." Ballot measures in other statesOther measures up for a vote November 7: •In Colorado, Amendment 40 would subject judges to term limits. If approved, five of the seven justices on the state's Supreme Court would have to resign. •Oregon would establish new voting districts for appellate judges, based on geography. The proposal is designed to "better reflect" the more conservative views of rural areas, compared with what supporters believe are more liberal judges from the Portland area. •California's Proposition 90 would limit government's eminent domain power to seize private property for "public use." •North Dakota would curb judicial authority in child custody cases. Rebecca Kourlis, executive director of the Institute for the Advancement of the American Legal System at the University of Denver said frustration with the courts seem to be driving the movement. Kourlis, until recently a justice of the Colorado Supreme Court, said the legal community needs to do a better job of addressing public concerns and of explaining its role to the public. "We should absolutely be expecting accountability," she told CNN. "They need to be accountable for being impartial, for not discriminating against people on the basis of race or socioeconomic status or even on the basis of who their lawyer is." Kourlis' group recently released a report proposing wider use of "judicial performance evaluations," a nonpartisan tool already in use in 22 states. Judges are rated according to factors such as caseload management, courtroom demeanor and adherence to laws. Judges are compared and evaluations can be used by voters in states where judges are elected or chosen by special panels created by the governor. In Montana, the state Supreme Court found Constitutional Initiative 98 invalid. Under it, citizens could have used special elections to recall judges over any "dissatisfaction." The court said there was "pervasive fraud" in the signature-collection process. Justice O'Connor sounds the alarmO'Connor has tirelessly promoted the need for judicial independence. She co-hosted a recent conference with Justice Stephen Breyer on the topic. And the two of them spoke to CNN in an interview. The American Bar Association has distributed a DVD, "Countering the Critics," which it is screening at libraries, business clubs and churches. All of this has had little sway on Branson. The military veteran and minister is what is known in legal circles as a prolific "pro per" by filing numerous lawsuits over alleged wrongs done to him. The U.S. Supreme Court says its records show at least eight appeals filed by him, all dismissed without a hearing. Branson says the number is closer to 14. Branson's frustration with the legal system reached a boiling point after what he alleges was brutality from a traffic cop. His $13.6 million lawsuit against the city of Los Angeles went nowhere, he says. So he and Zerman drafted a proposed judicial reform initiative in April 1995 that failed to get on their home state ballot. They created a Web site. They found an ideological soul mate in Bill Stegmeier. A South Dakota farm-machine businessman, Stegmeier took Branson's idea and now spearheads the drive near Sioux Falls. His Web site shows Stegmeier has spent about $165,000 of his own money to put the constitutional amendment on the November ballot and promote it. E's supporters splitStegmeier and his Amendment E supporters have split from Branson over a dispute over tactics. Opponents of the measure say the amendment is too sweeping, and would threaten not only judges but ordinary citizens. One such group is "No on E." "Under Amendment E, almost all our families, neighbors and friends would be vulnerable if called to jury duty: they could be sued by disgruntled litigants and criminal defendants they convict," according to its Web site. Such groups as school boards, zoning commissions and county commissions also could be affected because they receive some judicial immunity for their official duties, according to "No on E." Stegmeier said only judges could be sued. He predicts victory. Branson believes Nevada may be the next best chance to expand his initiative. "What judgment you judge, you shall
be judged," he said. As ordinary citizens, "we don't make laws,
we're just called on to obey them, and I think that rule applies not
only to us, but applies to judges." Judge Refuses to Block Ads After a Brief Hearing Judge Denies Request Wednesday By Kate Turnbow Constitutional
Amendment E would allow a 13-member citizen grand jury to review and
reverse decisions made by judges and then penalize those
decision-makers. Attorney General Larry Long said in his written
opinion about the measure that those serving on local government
boards and commissions would also be subject to the grand jury.
Those who have been prosecuted are allowed to serve on the jury.
Cases can be reviewed as long as anyone involved is still alive. Editorial Nearly obscured by the struggle for control of Congress, there is another important battle in a handful of states over measures aimed at punishing judges for their official rulings and making them more captive to prevailing political winds. These measures all hide behind the superficially appealing but profoundly misleading banner of judicial accountability. And, taken together, they add up to an assault on a fair and independent judiciary. In Colorado, voters will decide the fate of a far-reaching state constitutional amendment designed to kick a huge percentage of top sitting judges off the bench by setting a term limit of 10 years and applying the cap retroactively. A measure on the ballot in Oregon would create new geographic districts from which appellate judges could run, as a backdoor way to oust judges from the Portland area. In Montana, conservative groups tried to force voters to confront Constitutional Initiative 98, an attempt to "rein in" judges by establishing new recall elections and making it easier to remove judges for specific rulings. Fortunately, the state’s high court ruled this misbegotten initiative invalid because of what it called "pervasive fraud" by out-of-state paid gatherers of signatures. But the wackiest and potentially most far-reaching of the judge-bashing schemes is still on the ballot, South Dakota’s Jail 4 Judges initiative. The brainchild of Ronald Branson, an antigovernment activist from California operating at the political fringe, this reckless exercise seeks to keep judges in line by amending the state Constitution to eliminate judicial immunity from lawsuits by disgruntled plaintiffs and others. Immunity is a time-honored way of preserving an independent judiciary. This radical measure would create a special grand jury with a rotating membership and loose rules — in effect, a fourth branch of government. This new entity would be vested with the power to punish judges for their decisions, or, for that matter, school board members or any other local public official who had the bad luck to fit under the amendment’s broad definition of judicial power. Writing in The Wall Street Journal, the former Supreme Court Justice Sandra Day O’Connor correctly blasted the initiative as a bald attempt at judicial intimidation. By rejecting Jail 4 Judges, South Dakota voters can send a message of support for a strong and independent judicial system — without which democracy cannot function — that will resound nationwide. Poll: Americans Don't Want Politicians Constraining Judges CNN Poll
Sixty-seven percent of
1,013 people surveyed by Opinion Research Corp. on
Justice Stephen Breyer and retired Justice
behalf of CNN said
federal judges -- and Both a current and former Supreme Court justice told CNN they are not unaware of the criticism aimed at them, but they said such criticism is an integral part of life in a democracy. "As I went through the last few years of service here at the court, I saw increasing indicator of unhappiness with judges," said retired Justice Sandra Day O'Connor. But that unhappiness is a consequence of an independent judiciary, said Justice Stephen Breyer. "It comes from the necessity that someone have the last word. And since for 200 years, people have thought in this country that the best guarantee that minorities will not be oppressed, that the Constitution will be lived up to, is to give the very last word to a group of judges who are independent," he said. "Not because they are wiser -- they make mistakes -- but because, by giving them the last word, there is a better guarantee of that neutrality, insulated from politics, that can help those whom the Constitution wanted to help, that minority that might be oppressed." Forty-one percent of poll respondents said federal judges were "about right" in their decisions. Thirty-four percent said they are too liberal, and 20 percent said they are too conservative. The sampling error for the poll questions was 3 percentage points. "The fact is, once I'm appointed, I'm not a judge for one group or another group," Breyer told CNN. "And when I write a dissent or when I write a majority [opinion], the people that disagree with me the most, I'm their justice, too. I have to remember that. I can't write in a way that will please [everybody]. I know I can't. It's a big country." But, Breyer said, America's strength comes in part because of our ability to follow even the most hotly contested rulings. "We've learned as a nation to follow decisions even when we think they're wrong," he said. "And in a country of 300 million people and ... 900 million points of view, that is a national treasure." O'connor: Don't Call Us 'Activist Judges'
By Bill Mears
CNN Washington Bureau
Adjust font size:
WASHINGTON (CNN) -- Sandra Day O'Connor noticed a disturbing development as her last day on the Supreme Court neared. Over her final years on the bench, more people were talking about "activist judges," an issue she said that appeared to be "erupting all over the country." "That seemed to be a mantra of some kind," she told CNN. Members of the Supreme Court are a notoriously press-shy, but O'Connor, who retired in January, and Justice Stephen Breyer, a 13-year veteran, recently spoke candidly to CNN about their concerns about judicial independence and political retribution against judges. (Watch O'Connor bemoan the rhetoric on 'activist judges' -- 2:10) "I saw increasing indicators of unhappiness with judges," O'Connor told CNN's Jeffrey Toobin as part of the network's "Broken Government" series. "We heard all kinds of statements by members of Congress, by state legislators. We saw legislation introduced to somehow restrict or affect judges at both the state and federal levels." O'Connor's bluntness was tempered somewhat by Breyer's thoughtfulness, not surprising given he still sits on the bench. "The fact is, once I'm appointed, I'm not a judge for one group or another group," he said. "And when I write a dissent or when I write a majority, the people that disagree with me the most -- I'm their justice too." Some feel the judiciary needs to be free to keep the other branches of government in check. "We're in a very perilous time when the independence of the courts is vital to making sure the president doesn't go too far, even in an act of well-meaning zeal, to keep the fabric of our Constitution together," said Kathleen Sullivan, former dean of Stanford Law School. Controversy over 'activist judges'In 2005, two court cases that caught the public's attention and the president's choices for new Supreme Court justices made the judiciary a political fireball, prompting an intense debate on how judges should operate. The Terri Schiavo case turned on who, if anyone, had the legal right to allow Schiavo, who was ruled by lower courts to be in a "persistent vegetative state," to die. Despite attempts from Republicans lawmakers and President Bush to intervene by passing a law pertaining to the case, the Supreme Court ultimately refused to hear the matter and she died days after her feeding tube was removed. Many members of Congress were livid and their criticism troubled O'Connor. "It was asking for review of one specific case," she said. "That's so unusual. Usually laws are passed that govern a category of matters for courts to decide, not case by case. ... "It then came to this court and that resulted in a great deal of unspoken sentiment -- unhappy with the courts for how they had dealt with it." A second case that raised public hackles involved the right of local governments to seize private land for private development. In general, under a practice known as "eminent domain," a person's property may be condemned and the land converted for a greater "public use," like highways, schools, or revitalizing blighted areas. In this case, however, a well-kept residential neighborhood was being forced to make way for a private shopping development. The Supreme Court narrowly concluded that local governments could use eminent domain to seize private land to use for private economic development, if the seizure was for a greater public purpose. Critics said judges were injecting their beliefs into decisions best left to the legislative and executive branch. They called it "judicial activism" and called for a check on the fundamental business of the courts. "Quite frankly, the judiciary could use an inspector general," Sen. Charles Grassley, an Iowa Republican and member of the Judiciary Committee, told CNN. O'Connor disagrees, saying a new regulatory system is an odd concept to her. "I just think it might lead to some, unfortunate relations between the branches of government," she said. The third dynamic came when the president chose two judges, Chief Justice John Roberts to replace the late William Rehnquist and Justice Samuel Alito to replace O'Connor. But a seven-month debate filled with endless issue ads, rallies, and Web postings from conservatives and liberals only fueled the partisan tone of the nominations, polarizing an already divided electorate. "The system has gotten more political," said Thomas Goldstein, an attorney and Supreme Court legal analyst. "But we fortunately haven't gotten to the point where the process has completely broken down." The system, while shaky, still works, he said. Watching out for the minoritySome conservatives believe many judges have become too sensitive to criticism. In a recent op-ed in the Wall Street Journal, federal appeals court Judge William Pryor called current complaints against the courts "relatively mild" compared to the past. His solution? "Judges must do more than respond to criticisms; we must exercise restraint," he wrote. "Judges have a unique responsibility to safeguard our independence. It is not too much for us to look in the mirror and ask whether some criticisms are fair." O'Connor believes it is extremely important to try to maintain a stellar perception of the American legal system around the world. "We espouse the notion in this country, and around the world, that our best hope for peace is having all nations abide by the rule of law," she said. "And our federal courts have been a rather good example for other nations around the world. "And to see our courts now, under such serious attack, is a concern to me." Breyer argued it was the intent of the nation's founders that the judiciary -- an independent group insulated from politics -- should be the final arbiter on matters of law. "The best guarantee that minorities will not be oppressed, that the Constitution will be lived up to, is to give that very last word -- under narrow circumstances -- to a group of judges," he said. "Someone has to have the last word." Justice Scalia Rips Other Judges on Abortion, Suicide By John Heilprin WASHINGTON -- Deeply controversial issues like abortion and suicide rights have nothing to do with the Constitution, and unelected judges too often choose to find new rights at the expense of the democratic process, Supreme Court Justice Antonin Scalia said Saturday. Scalia, during a talk on the judiciary sponsored by the National Italian American Foundation, dismissed the idea of judicial independence as an absolute virtue. He noted that dozens of states, since the mid-1800s, have chosen to let citizens elect their judges. "You talk about independence as though it is unquestionably and unqualifiably a good thing," Scalia said. "It may not be. It depends on what your courts are doing." Scalia added, "The more your courts become policy-makers, the less sense it makes to have them entirely independent." Scalia, a leading conservative voice after 20 years on the court, said people naturally get upset with the growing number of cases in which a federal court intrudes on social issues better handled by the political process. "Take the abortion issue," he said. "Whichever side wins, in the courts, the other side feels cheated. I mean, you know, there's something to be said for both sides." "The court could have said, 'No, thank you.' The court have said, you know, 'There is nothing in the Constitution on the abortion issue for either side,'" Scalia said. "It could have said the same thing about suicide, it could have said the same thing about ... you know, all the social issues the courts are now taking." Scalia said courts didn't use to decide social issues like that. "It is part of the new philosophy of the Constitution," he said. "And when you push the courts into that, and when they leap into it, they make themselves politically controversial. And that's what places their independence at risk." Justice Samuel Alito Jr., the newest member of the Supreme Court, agreed that "the same thing exists, but to a lesser degree, with the lower courts." About 400 people turned out at the Hilton Washington hotel to hear the talk. William Sessions, a former FBI director and federal judge, and Lynn Battaglia, a Maryland appeals court judge, also spoke. Scalia's glib remarks and dry wit often drew laughter or applause. Scalia expressed disdain for the news media and the general reading public and suggested that together they condone inaccurate portrayals of federal judges and courts. "The press is never going to report judicial opinions accurately," he said. "They're just going to report, who is the plaintiff? Was that a nice little old lady? And who is the defendant? Was this, you know, some scuzzy guy? And who won? Was it the good guy that won or the bad guy? And that's all you're going to get in a press report, and you can't blame them, you can't blame them. Because nobody would read it if you went into the details of the law that the court has to resolve. So you can't judge your judges on the basis of what you read in the press." Alito complained that people understand the courts through a news media that typically oversimplifies and sensationalizes. He said people's ability to amplify their comments globally about judges and their opinions on the Internet takes a toll on the judiciary. "This is not just like somebody handing out a leaflet in the past, where a small number of people can see this," he said. "This is available to the world. ... It changes what it means to be a judge. It certainly changes the attractiveness of a judicial career." Scalia chimed in: "I think what Justice Alito says about being careful about, you know ... be nice to your judge. Take a judge to lunch. No, you can't do that." Later, Scalia observed, "It so happens that everything that is stupid is not unconstitutional." Call of
the West: Rein In the Judges By Stephanie Simon Of Elections, Judges and Stupidity By Andrew Cohen Election season this year means open season on judges around the country. In Montana, riled-up citizens tried to get onto the ballot a measure that would allow state court judges to be recalled from office at any time for any reason. In South Dakota, an initiative is set to be voted upon in November that would allow citizens to sue and otherwise punish judges for unpopular decisions. And in Colorado, a conservative group is fighting to impose sweeping term limits upon all of the state's appellate court judges. Let's take the last one first. Colorado's Amendment 40 would remove from office at the same time five of the state's current Supreme Court justices and seven of its current 19 intermediate appellate court judges. The state's judiciary thus would lose on one day a vast reservoir of institutional knowledge and experience -- not to mention by definition the best judges that Colorado has to offer. Why? Because proponents of the initiative, including John Andrews, the leader of the movement, believe that "there's a danger of public officials curdling like old milk if left around too long." Andrews, a former president of the state senate, wants to turn the judicial branch into just another hack political body like the one he just left, full of men and women who share the prevailing political view of the day. He apparently is annoyed at and whiny over a few recent state supreme court decisions and believes that the only way to get judges to make decisions that are popular (to him, anyway) is to make those judges more accountable to the electorate. Never mind all that "independent judiciary" nonsense our children learn about in school. And pay no attention to the fact that Colorado's existing judicial system is ranked among the leaders nationally in rooting out bad judges. Amendment 40 is such a bad idea -- purporting to solve a problem that does not exist by offering a plan that would make things worse -- that it has driven the state's major political figures of past and present, both Democrat and Republican, to come out against it. The current governor, Bill Owens, a Republican who was once the darling of the national party, has teamed with Roy Romer, his fabled Democrat successor, to come out against Amendment 40. So too has the Republican Attorney General. But it says something about the current political climate that an idea as senseless as this one would have made it even this far. Speaking of senseless, welcome to South Dakota, where supporters of Amendment E hope a new day will soon dawn where citizens will be able to turn the table upon judges and punish jurists over unpopular decisions. Amendment E would create a "grand jury" of citizens, rotating regularly, that would meet to determine whether a complaint against a judge warranted taking away from that judge long-held "immunity" from lawsuits (right now, and for obvious reasons, you can't sue a judge for failing to rule your way). Amendment E, as in Error, means that a group of citizens who don't like a judge's decision -- remember, judges when interpreting the Bill of Rights are the only checks against the tyranny of the majority -- can take their revenge. Under Amendment E, judges could lose part of their salary or retirement pay depending upon how much trouble they get into with that runaway grand jury the initiative would create. There is nothing subtle about it Amendment E: vehemently anti-judiciary forces want to diminish the authority of the courts and to destroy the independence of the judiciary. And the worst part? They seem to be winning, if recent polls in South Dakota are accurate. Just imagine what the passage of Amendment E would mean to the practice of law, and the legal system itself, in South Dakota. Just imagine what will happen when the inmates are allowed to run the asylum. Fortunately, at least, the citizens of Montana won't have the opportunity, for now anyway, to vote this November on another ominous anti-judiciary measure. CI-98 was designed to allow Montanans to recall state court judges at any time for any reason. All it would have required was a "justification statement" that set forth "any reason acknowledging electoral dissatisfaction with a justice or judge notwithstanding good faith attempts to perform the duties of the office." But CI-98 now is in legal trouble before Montana voters get to see it; turns out that there may have been fraud in the collection of the signatures needed to get the measure, and a few others, on the ballot in the first place. Right now, thankfully, CI-98 is dead in the water. Let's hope it stays that way. It is tough enough to be a judge these days, especially a state-court judge. There is perhaps more outward political pressure upon judges than there has ever been before at a time when they are less insulated, and thus more prone to political attack than ever before. Nationally, the false charge of "judicial activism" has made local judges the target of special-interest political groups even when those judges are simply following established law -- simply following the precedents that have been given to them by the higher courts, including the not-exactly-liberal United States Supreme Court. Clearly, that poison has flowed downhill from Washington, D.C. all the way to the Rocky Mountains. These dangerous "grassroots" (read: carefully and professionally coordinated) measures are boldly and brashly designed to scare judges away from making tough and sometimes unpopular decisions about some of the most controversial issues of our time. They are designed to make the judiciary bend to the will of the masses. But in the end, if Amendment E and Amendment 40 and others like it pass into law, the masses will lose. They will lose when brave and smart men and women no longer decide to become judges because of the harassment explicit in these measures. They will lose when the rule of law, administered now almost always by judges of good faith and good will, becomes as malleable as the political platforms of our time. Smarter men than you or me, and certainly smarter men than the folks who came up with Amendment 40, Amendment E, and CI-98, set up a system of government where the judicial branch stands a bit apart from the political process in the order of things. That separation of powers has worked wonderfully well now for nearly a quarter of a millennium. If that changes, on these terms, it changes at our grave peril. Andrew Cohen writes Bench Conference and this regular law column for washingtonpost.com. He is also CBS News Chief Legal Analyst. His columns for CBS can be found online here. http://www.washingtonpost.com/wp-dyn/content/article/2006/10/05/AR2006100501661.html
The Threat to Judicial Independence
In November, South Dakotans will vote on a state constitutional amendment being advocated by a national group called "JAIL 4 Judges." If the amendment passes, it would eliminate judicial immunity and enable a special grand jury to censure judges for their official legal determinations. Although the amendment's supporters claim they seek a "judicial accountability initiative law" (JAIL), they aspire to something far more sinister--judicial intimidation. Indeed, the national Web site of JAIL 4 Judges boasts with striking candor that the organization "has that intimidation factor flowing through the judicial system." It is tempting to dismiss this proposed amendment as merely an isolated bout of anti-judge angst. But while the JAIL 4 Judges initiative is unusually venomous, it is far from alone in expressing skepticism of the judiciary. In addition to South Dakota, this election cycle has witnessed efforts in at least three other states that are designed to rein in judges who have supposedly "run amok." Not to be completely outdone, Congress also has engaged in recent efforts to police the judiciary. Seeking to constrain the legal sources that are available to judges, some members of Congress have advocated measures that would forbid judges from citing foreign law when they are interpreting the Constitution. In addition, bills have been introduced in both houses of Congress supporting the creation of an inspector general to investigate and monitor the federal bench. Finally, the House of Representatives passed legislation over the summer that would prohibit the Supreme Court from considering whether the Pledge of Allegiance's inclusion of the words "under God" violates the First Amendment.
Directing anger toward judges enjoys a long--if not exactly venerable--tradition in our nation. President Thomas Jefferson, for instance, was a particularly spirited antagonist of judges appointed by the Federalists. Moreover, President Franklin D. Roosevelt sought to increase the number of Supreme Court justices because the court invalidated several pieces of New Deal legislation. And I can distinctly remember seeing lawns and highways across the country that featured signs demanding the impeachment of Chief Justice Earl Warren. But while scorn for certain judges is not an altogether new phenomenon, the breadth and intensity of rage currently being leveled at the judiciary may be unmatched in American history. The ubiquitous "activist judges" who "legislate from the bench" have become central villains on today's domestic political landscape. Elected officials routinely score cheap points by railing against the "elitist judges," who are purported to be of touch with ordinary citizens and their values. Several jeremiads are published every year warning of the dangers of judicial supremacy and judicial tyranny. Though these attacks generally emit more heat than light, using judges as punching bags presents a grave threat to the independent judiciary. Troublingly, attacks on the judiciary are now being launched by judges themselves. Earlier this year, Alabama Supreme Court Justice Tom Parker excoriated his colleagues for faithfully applying the Supreme Court's precedent in Roper v. Simmons, which prohibited imposition of the death penalty for crimes committed by minors. Offering a bold reinterpretation of the Constitution's supremacy clause, Justice Parker advised state judges to avoid following Supreme Court opinions "simply because they are 'precedents.'" Justice Parker supported his criticism of "activist federal judges" by asserting that "the liberals on the U.S. Supreme Court . . . look down on the pro-family policies, Southern heritage, evangelical Christianity, and other blessings of our great state."It should come as no surprise that the increased scapegoating of the judiciary has coincided with an increase in anger directed toward individual judges. In the last decade, threats and inappropriate communications directed toward the federal bench have more than quadrupled. According to the U.S. Marshals Service, complaints about such behavior were being logged at a record-setting pace this year. And while it is encouraging that Congress recently set aside funds for federal judges to have home security systems installed, it is deeply dispiriting that the demand for the systems among the judges was so high. Judge David B. Sentelle of the U.S. Court of Appeals for the D.C. Circuit was quite right when he observed, "Judges must be free to make judicial decisions without the fear of physical harm to themselves or to members of their families." Given the escalating criticism that is leveled at judges, it seems appropriate to bear in mind the reasons that the Framers initially established an independent judicial branch. In Federalist No. 78, Alexander Hamilton explained why, in our constitutional system, "the complete independence of the courts of justice is peculiarly essential." Hamilton contended that the judiciary needed to be distinct from the legislative and executive branches because that was the best way to guarantee "a steady, upright, and impartial administration of the laws." Hamilton also believed that judicial independence was necessary in order to safeguard against "injury of the private rights of particular classes of citizens, by unjust and partial laws." It is well worth remembering that, far more often than not in modern times, the judiciary has admirably performed these two vital tasks: checking the other two branches and protecting minority rights. An independent judiciary does not mean, of course, that it is somehow improper to criticize judicial decisions. To the contrary, it is a healthy sign for democracy that the public is engaged with the workings of the judicial system. Judges can--and do--sometimes render erroneous decisions, but that is why appeals are allowed to higher courts. Moreover, judges can be--and are--subjected to discipline for legitimate reasons. Members of the judiciary cannot sincerely believe that they should be regarded as above the very laws that they are charged with interpreting. Ours is, after all, a nation of laws, not men--or even women. Nonetheless, we must be more vigilant in making sure that criticism does not cross over into intimidation. Judges and lawyers certainly play essential roles in opposing attacks on the judiciary. Indeed, last week, I--along with Justice Stephen Breyer--co-chaired a conference on judicial independence at Georgetown University Law Center. But the legal community needs help from other sectors of society to ensure that the current mood of cynicism does not end up compromising the rule of law. This includes members of the business community. Adam Smith, writing in "The Wealth of Nations," well understood the importance of an independent judiciary: "Upon the impartial administration of justice depends the liberty of every individual, the sense which he has of his own security." Without judicial independence, Smith warned, "it is scarce[ly] possible that justice should not frequently be sacrificed to what is vulgarly called politics." More broadly, of course, all of society has a keen interest in countering threats to judicial independence. Judges who are afraid--whether they fear for their jobs or fear for their lives--cannot adequately fulfill the considerable responsibilities that the position demands. In these challenging and difficult times, we must recommit ourselves to maintaining the independent judiciary that the Framers sought to establish.
Justice O'Connor is a retired associate justice of the U.S.
Supreme Court.
The Profession Faces Challenges That Must Be Met By Jan Pudlow
|
(CNN)
-- Despite politicians' complaints about judges having too much
power, two-thirds of Americans do not believe elected officials
should have more control over federal judges, according to a new CNN
poll released Saturday.
|
A Feast
|
