April 19, 2005,
In the summer of 1987, Robert Bork was a sitting judge on the United States Court of Appeals for the D.C. Circuit. President Ronald Reagan then nominated him to sit on the Supreme Court. Senator Ted Kennedy immediately went to DEFCON I. Here is some of what he said in a televised speech:
Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim or [sic] government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.
Not a word of what Kennedy said was true and he was careful to say it on the Senate floor where the Constitution’s speech and debate clause (Art. I, Sec. 6) rendered him immune from suit for libel or slander. But, naturally, he was not saying it because he thought it was true. He was saying it to be provocative. He was saying it to inflame public anger and passion against a distinguished jurist even though he well knew that his scurrilous words would, of necessity, tar either the Supreme Court or the Court of Appeals, since Bork was slated to remain on the latter if not elevated to the former. For Kennedy and his allies, when the political stakes were high enough, the public reputation of the United States courts was not something that warranted much concern.
Now, 18 years later, the weekly magazine Newsweek has generated much fanfare with a new article, alarmingly titled “The War On Judges.” The story asserts as fact that there is a “jihad against the judiciary,” led (of course) by … conservatives and congressional Republicans.
Newsweek’s Debra Rosenberg purported to substantiate this claim by noting complaints about judicial activism, the selective use of foreign law to interpret the U.S. Constitution, and the federal courts’ refusal to review a state ruling in Florida that an incapacitated woman, Terri Schiavo, be starved and dehydrated to death at her husband’s request. Such practices, Rosenberg reported, had led to discussions in conservative circles about the possibility of cutting back the courts’ subject-matter jurisdiction and perhaps even trimming the number and size of the courts themselves.
Newsweek seemed surprised to find that such remedies are actually prescribed by the Constitution. “It may sound extreme,” Rosenberg took pains to observe before qualifying that “supporters say it’s constitutional.” Why would “supporters say” such a crazy thing? Because, Newsweek finally acknowledges, “Article III gives Congress power to limit the courts.”
Still, Rosenberg frets, such “‘intemperate’ statements by politicians and an escalation of ‘fervent judge-bashing’” have judges fearing for their lives. To underscore the point, Newsweek invoked the recent brutal murders of family members of a Chicago federal judge and noted that “judges have stepped up their reporting of death threats[.]” Not that there are suddenly more death threats, mind you; just that reporting is up.
There have been death threats against (and occasional murders of) judges for years. The last dozen years in particular have produced a spike in expenditures for the protection of judges and other participants in criminal justice system. There’s lots of evidence that it is largely attributable to the new realities of terrorism prosecutions. There is some evidence that it is attributable to what simply is the general run of evil and unstable people in a population that has now risen to nearly 300 million. There is no evidence, other than shameful innuendo, that it is attributable to an important public debate about the proper role of the judiciary in our society.
Here’s a surprise: Newsweek does not quote Senator Kennedy’s insights or, better, incites. There is a passing mention of how “liberal attacks on conservative Supreme Court nominees like Robert Bork and Clarence Thomas spawned a new era of political hostility.” But no description is provided of either what these “attacks” entailed or who leveled them. And there is certainly no suggestion that they were anything like a “jihad.”
In reporting that political “vitriol” about the courts is “higher than ever,” I wonder if Rosenberg and her colleagues can point to anything said by Rep. Tom DeLay and the other conservatives they mention that comes remotely close in terms of “fervent judge-bashing” to the willful vitriol spewed by the senior senator from Massachusetts. And a number of judges were threatened or killed in the late 80s and early 90s. Should we, on Newsweek’s logic, inquire into whether there is some causal connection between those vile acts and Senator Kennedy’s bombast?
Conservatives are not besmirching judges, like Kennedy did to Bork. What conservatives and others who care about democratic self-determination are raising is the serious issue of whether the courts are changing the fundamental nature of our republic. People of good will need not agree that this is the case. But they all ought to be offended by the notion that the issue cannot even be discussed without raining down slanders which imply that criticizing judicial performance is akin to Wahhabi-style holy war.
And somehow I don't recall Newsweek and the rest of the media being this concerned about the damaging effects of public criticism on judicial independence after the Supreme Court decided Bush v. Gore.
Andrew C. McCarthy, who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others, is a senior fellow at the Foundation for the Defense of Democracies.