Judicial independence

  • April 11, 2012

    by Nicole Flatow

    When Fifth Circuit Judge Jerry Smith asked the Department of Justice for a three-page single-spaced memo defending its support for the long-established principle of judicial review, Attorney General Eric Holder did what was asked and responded.

    He refrained from pointing out, as Jeffrey Toobin did, that Smith’s behavior during the hearing on a challenge to the Affordable Care Act was a “disgrace,” or as Orin Kerr did, that it was “highly inappropriate” for Smith to ask the DOJ to defend political comments by President Obama about the Supreme Court’s review of the health care law totally outside of the scope of the record in the case.

    But in his dreams [and in The American Prospect], constitutional law professor Garrett Epps envisions a different kind of letter Holder might have sent, in which he refuses to respond on the basis that the Fifth Circuit has absolutely no jurisdiction in this case over the President of the United States:

    Dear Judge Smith,

    … This letter is a truthful response to this court's order and the issues of jurisdiction and judicial ethics it raised. Because it is truthful, it will never be filed with any court. Nonetheless, I will take this imaginary opportunity to state that the proper response to your order is a regretful refusal to comply on the grounds that it was made in excess of your jurisdiction, that it raises serious issues about your fitness to serve the United States in a position of honor and trust, and that it tends to bring discredit on the federal judiciary.

    Epps goes on to explain that the very same decision that established judicial review, Marbury v. Madison, also established that “federal courts are courts of limited jurisdiction” and any attempt to go outside that jurisdiction deprives them of their power.

    While presidents are political actors who have criticized the courts since Thomas Jefferson, judges are expected not to act as naked partisans, he explains.

    He continues:

  • December 19, 2011

    by Jeremy Leaming

    Newt Gingrich’s outlandish commentary on so-called radical judges is garnering, rightfully so, plenty of attention, but as American University Law Professor Jamie Raskin writes in this piece for The Huffington Post, there are other Republican presidential candidates, whose positions on the judiciary are just as worrisome.

    Raskin, also a Maryland State senator, noted that Gingrich’s “outbursts against judicial independence” have raised the hackles of a number of prominent conservatives. And one can see why he says. During the last GOP debate, Gingrich’s comments about the judicial branch, Raskin says, “were divorced from reality and indeed comical for a self-proclaimed ‘historian.’ He called the courts ‘grotesquely dictatorial, far too powerful, and … arrogant in their misreading of the American people.’”

    In particular Gingrich claimed he was seriously peeved over the federal appeals court opinion that found constitutionally suspect the practice of reciting in public schools the Pledge of Allegiance, which was made religious during the Eisenhower administration with the assertion of the words “under God.” That decision, as Raskin notes, was later reversed by the U.S. Supreme Court. Nonetheless, Gingrich bandied about that federal appeals court opinion, along with a few others, to blast the federal courts and claim that if he were president he’d take action to reign judges in. (On a CBS’s “Face the Nation,” Gingrich said there is “no reason the American people need to tolerate a judge that is out of touch with American culture,” and that if he were president he’d order federal Marshalls to arrest such judges.)

    But Raskin warns that voters who care about an independent judiciary should not be lulled into believing that Mitt Romney is any better on the matter.  

    Raskin points out that “Romney’s new constitutional advisor is none other than former Judge Robert Bork, an astounding selection to head up the Governor’s legal and constitutional affairs advisory team. Bork is a fiercely pro-corporate, anti-voting rights, anti-choice, anti-feminist, pro-censorship, anti-gay, anti-free speech, anti-separation of church and state, and evolution-denying ideologue who has described the 9th Amendment to the Constitution defending the rights of the people as ‘an inkblot’ and called for allowing Supreme Court constitutional decisions to be overturned by majority vote in Congress as well as a constitutional amendment to deny gay people the right to marry.”

  • December 16, 2011
    The Senate confirmed Alaska Supreme Court Justice Morgan Christen to the U.S. Court of Appeals for the Ninth Circuit on Thursday by a vote of 95-3, three months after she was approved by the Senate Judiciary Committee. Christen will fill one of four vacancies on the Ninth Circuit considered judicial emergencies. “At a time when judges on that circuit are being called upon to handle double the caseload of the other Federal circuit courts, the Senate should have expedited the consideration of Justice Christen’s nomination, not needlessly slowed it down,” said Senate Judiciary Chairman Patrick Leahy (D-Vt.) before the vote. “The Chief Judge of the Ninth Circuit, Judge Alex Kozinski, a Reagan appointee, along with the members of the Judicial Council of the Ninth Circuit, have written to the Senate emphasizing the Ninth Circuit’s ‘desperate need for judges,’ urging the Senate to ‘act on judicial nominees without delay,’ and concluding that
    There are 22 other nominees awaiting an up-or-down vote before the Senate adjourns later this month.
    The Senate Judiciary Committee voted out the nomination of Brian C. Wimes to the U.S. District Court for the Eastern and Western Districts of Missouri by a voice vote. It also held a nomination hearing for Paul J. Watford, another of the president’s nominees to the U.S. Court of Appeals for the Ninth Circuit.
    In the wake of the filibusters of D.C. Circuit nominee Caitlin Halligan and Consumer Financial Protection Bureau nominee Richard Cordray, the nonpartisan group "No Labels," run by former Rep. Tom Davis (R-Va.) and Bill Galston, a former senior adviser to President Clinton, is calling for a plan to end gridlock in Congress that includes filibuster reform. In an op-ed in Politico, Davis suggests up-or-down votes on all presidential nominees within 90 days. In their recent ACS Issue Brief, law professors Richard Painter and Michael Gerhardt also call for time limits on judicial nominations as one of several proposals for reforming the process.
    Continuing criticism of the Senate’s recent filibusters has come from ACS Board Member Linda Greenhouse in The New York Times, American Enterprise Institute Resident Scholar Norman Ornstein in Roll Call and numerous editorial boards.
  • December 15, 2011

    by Nicole Flatow

    Former George W. Bush attorneys general Michael Mukasey and Alberto Gonzales are expressing alarm over Republican presidential primary candidate Newt Gingrich’s latest proposal to eviscerate the power of the courts, Fox News reports.

    Mukasey calls some of the ideas in Gingrich’s position paper “dangerous, ridiculous, totally irresponsible, outrageous, off-the-wall and would reduce the entire judicial system to a spectacle," and Gonzales takes particular aim at the suggestion that Congress subpoena judges after controversial rulings, saying, “I cannot support and would not support efforts that would appear to be intimidation or retaliation against judges." 

    In his 28-page paper, "Bringing the Courts Back Under the Constitution," Gingrich suggests a number of radical ways in which the legislative and executive branches should rein in “lawless judges,” including by eliminating courts they don’t like, limiting the scope of decisions those courts can make, and simply ignoring Supreme Court decisions.

    On Gingrich’s suggestion that the entire U.S. Court of Appeals for the Ninth Circuit be eliminated, Mukasey says, “The fact is the Constitution empowers the Supreme Court to establish lower federal courts. Presumably it can undo lower federal courts. But to say that you are going to undo an entire court -- simply because you don't like some of their decisions -- when there are thousands of cases before that court is totally irresponsible."

    Mukasey and Gonzales echo the concerns of several other commentators, who have expressed particular alarm over Gingrich’s attack on the landmark decision Cooper v. Aaron, in which all nine members of the Supreme Court affirmed a court order calling for desegregation. 

    “If he had his way, a Supreme Court that ordered an end to racist segregation policies would become a puppet of the political branches,” The New York Times editorial board asserts.

    In her New York Times Opinionator column, American Constitution Society Board Member Linda Greenhouse calls “truly head-spinning” the “tenuous hold that this screed, from a onetime history professor, has on American history.”  She continues:

  • December 15, 2011
    Judges Under Fire
    Human Rights, Independent Judges, and the Rule of Law
    Hon. Harold Baer Jr.

    By Harold Baer Jr., U.S. District Judge for the Southern District of New York

    As we watch the Arab spring unfold and hear the depressing stories of how the People’s Republic of China deals with human rights, Judges Under Fire: Human Rights, Independent Judges, and the Rule of Law becomes a must read. It provides insights into how the Rule of Law and an independent judiciary have fared over the last 300 years around the world. More to the point, it demonstrates what happens when judges and citizens lose track of the vital tenets to which the book is devoted.

    On that score, one can’t help but wonder how some of the newly liberated countries will fare. Will they ensure that the Rule of Law is a part of their rebirth? How sad it will be if countries like Egypt and Libya slip back into anarchy. My book provides the reader with stories of how easy it could be for that to happen, both in older established countries as well as in fledgling republics. It supports the proposition that without the Rule of Law and an independent judiciary, democracy as we know it cannot survive. It is this proposition that we must bring to the attention of the leaders of these newly liberated countries.