The War On Judges  - Battles of the Bench
             The Rhetoric Is Heated. The Political Will Is Strong.
             Inside the Right's Campaign to Rein in Judicial Clout

By Debra Rosenberg
Newsweek
April 25, 2005 issue

It was meant as an olive branch in a time of  escalating hostilities. For months, members of Congress had been railing against federal judges, lambasting their decisions and vying to limit their power. So Supreme Court Justice Sandra Day O'Connor embarked on a quiet campaign to quell the tensions. Several months
ago O'Connor invited a handful of House Republicans to a private lunch at the court. In a small dining room outside her chambers, the group discussed judicial philosophy over sandwiches and a salad sprinkled with walnuts. "It was just the two branches of government reaching out, trying to keep the lines of communication open," says

Rep. Steve Chabot of Ohio, who's been highly critical of judges like O'Connor who he believes stray from a strict reading of the Constitution. Another critic on the Judiciary Committee, Iowa Rep. Steve King, returned for his second visit. Last year he dined alone with

O'Connor after a private tour of the court. Because the justice could not talk about any specific cases or even controversial issues that might come before her the conversation had its limits. "We didn't quite get to the meat of our discussion," King admits. "But it opened the dialogue."

The unusual private sessions suggest that concern over the rising tide of anti-judge rhetoric has rocked even the Supreme Court. Though judges have been dragged into the culture wars before, lately the animosity—and a range of new efforts to curb judicial power—have reached fever pitch. Now with the possibility of a vacancy on the Supreme Court perhaps only weeks away, the stakes and the vitriol are higher than ever. When federal judges refused to intervene in the case of Terri Schiavo, House Majority Leader Tom DeLay railed against "a judiciary run amok" and said judges in the case would have
to "answer for their behavior." (He later apologized for his "inartful" remarks.) At a recent Washington conference, speakers raised the notion of "mass impeachments" for liberal judges. Focus on the Family founder James Dobson compared black-robed Supreme Court justices to white-robed Ku Klux Klan members. Ever since the husband and mother of a federal judge in Chicago were brutally murdered in February, judges have stepped up their reporting of death threats to the U.S. Marshals Service, which protects them. Now some judges are requesting increased security and canceling public appearances. In a
speech earlier this month at Goucher College, O'Connor herself said she was surprised at all the violent threats she received. "I don't think the harsh rhetoric helps," she told the crowd. "I think it energizes people who are a little off base to take actions that maybe they wouldn't otherwise take."

Criticizing judges is something of an American tradition. During Reconstruction and again during the civil-rights era some lawmakers tried unsuccessfully to strip controversial issues from the courts' control. In the late 1950s, conservatives plastered impeach earl warren billboards across the country, angry at a string of controversial decisions on desegregation and communism (Warren survived). In the 1980s and '90s, liberal attacks on conservative Supreme Court nominees like Robert Bork and Clarence Thomas spawned a new era of political hostility.

Among conservatives, frustration with judges has been quietly building for years. They contend that "activist" judges are creating laws from the bench. "The courts are involved in everything," says Mark Levin, whose new book "Men in Black: How the Supreme Court Is Destroying America" became an instant best seller. "You have one branch of government that's entirely unaccountable." In the past few years alone, judges have irked social conservatives with rulings on the words "under God" in the Pledge of Allegiance, gay marriage, the Ten Commandments and so-called partial-birth abortion. Democrats in the Senate stonewalled President George W. Bush's most conservative judicial nominees. And then judges at all levels refused to intervene in the Schiavo case—even after Congress passed a law allowing them to do so. That kicked the fight into high gear. Now, says Family Research Council president Tony Perkins, the issue of judges is so important to his members that it's replaced gay marriage at the top
of his agenda. "Every issue we care deeply about has the fingerprints of judges on it," he says.

The attacks are principled, not partisan, foot soldiers in the new war on judges say; indeed, the arrows are aimed at a federal judiciary that was largely selected by Republican presidents. One prominent target: Judge James Rosenbaum, chief judge of the U.S. District Court in Minnesota. Called to testify before a House
subcommittee in 2002, Rosenbaum—a Reagan appointee with a reputation
for handing down tough sentences—supported a proposal to give judges
discretion in sentencing low-level drug dealers. His position so angered Republicans on the panel that they tried to subpoena his records and threatened him with impeachment. He's still on the bench.

Shortly after the Rosenbaum case, DeLay helped organize the House Working Group on Judicial Accountability, a dozen-member group that meets monthly. Its focus: stripping the federal courts of their jurisdiction on sensitive matters like the Pledge of Allegiance and Ten Commandments. It may sound extreme, but supporters say it's constitutional: Article III gives Congress power to limit the courts.

Last year the group introduced a resolution criticizing judges for citing international law in their opinions something Justice Anthony Kennedy did in recent rulings striking down the juvenile death penalty and a Texas sodomy law. The resolution is likely to be reintroduced this year, as are proposals to keep courts from ruling on partial-birth abortion and the federal Defense of Marriage Act. So far, some of the measures have passed the House but not the Senate.
But the current atmosphere could change all that. "There's a tradition of Congress respecting the courts' authority that is in jeopardy right now," says Indiana University law professor Charles Geyh, author of the upcoming book "When Courts and Congress Collide."

Congress can't lower judges' salaries or fire them provisions tucked into the Constitution by the Framers, who watched judges serve at the whim of King George III. But lawmakers can eliminate their positions altogether. "We could reduce the size of the Supreme Court," says Rep. Steve King. "It doesn't take nine judges, it only takes one. It would just be Chief Justice William Rehnquist with his card table." King admits that idea is not under serious consideration. But a plan to split the notoriously liberal Ninth Circuit Court of Appeals has enough traction to make some of its judges nervous.

Even the most ardent opponents of "activist" judges admit that it would be nearly impossible to impeach them for their rulings rather than for explicit judicial misconduct. In the nation's history, only seven judges have been impeached in the House and convicted in the Senate; the last was U.S. District Court Judge Walter Nixon in 1989, who was convicted of perjury. But that didn't stop participants at a recent Washington conference called "Confronting the Judicial War on Faith" from fantasizing about it. "It's a symptom of frustration
conservatives have right now," one conference participant said later.

Grass-roots activists are hoping a looming filibuster fight will have a better chance of success. In his quiet office on Massachusetts Avenue, former Senate aide Manuel Miranda juggles weekly conference calls with members of the National Coalition to End Judicial Filibusters, a cluster of nearly 200 conservative groups. Senate Democrats have been threatening to block a handful of judges they call "extremist" by using a filibuster to keep debate going. Now Republicans are considering what Democrats call "the nuclear option"—
a parliamentary move that would end the filibusters and force a vote on the Senate floor. In return, Democrats have vowed to grind Senate business to a halt.

Next up: a looming Supreme Court confirmation fight. In 2004 Gary Marx mobilized grass-roots supporters for the Bush campaign. "I saw that 'judges' was one of the biggest applause lines," he says. Earlier this year Marx launched the Judicial Confirmation Network. He is focusing primarily on the Supreme Court battle ahead. His coalition of some 75 groups of social and economic conservatives is already organizing in battleground states—primarily Red States with Democratic senators up for re-election in 2006—hoping to convince
lawmakers that backing Bush's court picks might help them keep their jobs. Last week Marx released the first conservative ad supporting Bush's judges—an attempt to counter the recent barrage of ads run by People for the American Way.

The jihad against the judiciary may be energizing the Republican base, but now some establishment Republicans have begun to worry that it could alienate everyone else. Both President Bush and Vice President Dick Cheney recently reiterated their support for "an independent judiciary." Former White House counsel C. Boyden Gray, who heads an effort to get Bush's appeals court judges confirmed, is no fan of impeachment or court stripping. He hopes the broader debate will still help his cause, but admits, "If I had my druthers, I would
not conflate the two."

Judges are used to weathering criticism quietly, but this round of attacks has sparked a broader sense of anxiety. Last week Judge Lawrence Piersol, president of the Federal Judges Association, sent an e-mail to members acknowledging that many of them were concerned about "intemperate" statements by politicians and an escalation of "fervent judge-bashing." Also last week, Supreme Court Justices Kennedy and Thomas asked Congress for money to add 11 police officers including one new officer just to assess threats against the justices. And the Judicial Conference of the United States put in a
$12 million request to install home-security systems for more than 800 federal judges. In Florida, where the state's Supreme Court was besieged with angry phone calls during the Schiavo case, Justice Peggy Quince canceled a long-planned public speech after she learned it would be televised. "When I go home I go out and cut the grass and wash my car," says one federal judge who did not wish to be named. "Anyone who wants to do harm to me can." And that's a fear
that no private lunch in a justice's chambers will easily quiet