It was an altogether scholarly collection of professors, lawyers, policy analysts, journalists, and concerned citizens—among them such prominent conservative legal scholars as Robert Nagel, Steven Calabresi, Christopher Wolfe and Hadley Arkes—that gathered at Washington's Sheraton City Center Hotel last October to discuss the matter of "judicial imperialism." But at the conference dinner, as attendees cracked Clinton jokes over filet mignon and merlot, they were treated to a speech from the singularly unscholarly Tom DeLay—former exterminator, bombastic representative from Texas, and by most accounts the most powerful man in the House.
"The sanctity of the Constitution is under assault from many different directions," began DeLay in halting, twangy stump mode. "The branch of government charged with maintaining the sanctity of the Constitution no longer feels bound by the constraints of that same Constitution. The courts today recognize no limits on their authority. They legislate with reckless abandon. They overturn the will of the people as expressed through their legislative representatives. What we're left with is an imperial judiciary that knows no bounds to its power or its tenure. This is a recipe for tyranny!"
It is instructive that Tom DeLay, one of the few non-lawyers in Congress, would be lecturing this august assemblage—a conference of the American Public Philosophy Insitute (APPI), a group dedicated to, among other pursuits, stamping out judicial imperialism—on a topic they understand far better than he. If Nagel, Arkes, and Calabresi represent the intellectual backbone of the maturing "judicial reform" movement, then Tom DeLay and other prominent conservatives—like former Ronald Reagan acolyte Edwin Meese, the Family Research Council's Gary Bauer, and Republican Senators Phil Gramm and John Ashcroft—represent its public, political face.
Republicans and Democrats, of course, have always fought over the direction of the federal bench, and the specter of "judicial activism" has rallied conservatives for decades. But even at their most rancorous, as during the nomination hearings of Robert Bork and Clarence Thomas, those battles have taken place mostly within the horse-trading confines of the judicial appointments process. No longer. Under the cover of "judicial reform," ultraconservatives are waging an increasingly effective campaign to vilify and discredit "activist" federal judges. Seeking ultimately to radically reshape the federal bench, judicial reformers are abandoning traditional avenues of change and advocating more direct solutions.
"America's founders believed that impeachment could be an effective way to keep the judiciary within its proper bounds," DeLay told the APPI conference in October. "When judges exercise power not delegated to them by the Constitution, I think impeachment is a very proper tool." At this, the audience broke into applause.
DeLay and his calls for impeachment are only the most visible face of judicial reform. "Since 1995," says Stephan Kline of the Alliance for Justice, "we have seen the greatest assault on judicial independence since the court-packing attempts of the Roosevelt years." Beginning in 1996, Republicans passed a wave of what Kline calls "court-unpacking" bills, many of which stripped federal courts of jurisdiction in certain types of criminal-rights cases. The Prison Litigation Reform Act, for instance, limited the ability of judges to issue injunctions to improve prison conditions under the "cruel and unusual punishment" clause of the Eighth Amendment, while the Illegal Immigration Reform and Immigrant Responsibility Act substantially reduced the courts' ability to review asylum and deportation decisions involving illegal immigrants. Meanwhile, during his presidential campaign, Bob Dole dubbed Clinton appointees the "All-Star Team of Liberal Leniency," and singled out federal judges Harold Baer and Lee Sarokin for attack—Baer for suppressing evidence in a high-profile drug case, and Sarokin for a series of decisions he made as a state judge in New Jersey. Both men were pilloried in the press, with conservative advocacy groups issuing waves of condemnatory press releases and pundits urging the impeachment of Baer and attacking Clinton for elevating Sarokin to the appeals circuit. The criticism was so intense that Sarokin eventually resigned from the bench. "I see my life's work and reputation being disparaged on an almost daily basis, and I find myself unable to ignore it," Sarokin wrote in his resignation letter. "In the current political campaign, enforcement of constitutional rights is equated with being soft on crime and, indeed, even causing it. To hold judges responsible for crime is like blaming doctors for disease."
Perhaps scenting blood, DeLay took things a step further late in 1997, announcing that he thought impeachment was a "proper solution" for judges whose rulings were "particularly egregious." Soon after, Senator Ashcroft convened a series of "judicial activism" hearings featuring DeLay and Thomas L. Jipping, director of the right-wing Free Congress Foundation. A number of DeLay's Republican colleagues, including Ed Bryant, Sam Johnson, and Bob Barr, immediately jumped on the impeachment train and soon named their own candidates, including Baer, William Justice, Fred Biery, Thelton Henderson, and John T. Nixon. "We have a whole big file cabinet full" of names, DeLay told the Senate Judiciary Committee. "We are receiving nominations from all across the country of judges that could be prime candidates for the first impeachment."
Thus far, such talk has amounted only to hyperbolic rhetoric. But judicial reformers also have simpler methods of crippling judges, chief among them the Senate's authority to "advise" the president on judicial nominees. For the past four years, Republicans on the Senate Judiciary Comm ittee have simply refused to confirm or even hold hearings for many of Clinton's nominees to the federal bench. Besides the obvious motive—diminishing a sitting Demo cratic president's natural influence over judicial appointees—there has been another, more insidious logic. As Leonard Leo, a voracious bench-basher, told the APPI conference, "Busy judges with less staff have less time to make trouble." By drowning judges in caseloads, judicial reformers say they hope to make it impossible for them to render and enforce "activist" decisions. But this strategy has the corollary effect of virtually strangling the country's justice system: at one point in 1997, nearly one in ten federal judgeships were vacant—leaving the federal courts so backlogged as to prompt a harshly worded rebuke from Supreme Court Chief Justice William Rehnquist. In the Southern District of Illinois, for example, Chief Judge J. Phil Gilbert did not hear a single civil case last year because half the seats on his four-judge panel were empty; on the Ninth Circuit, according to the Alliance for Justice, Chief Judge Proctor Hug canceled 100 panels involving 600 oral arguments, calling the 10 vacancies on his 28-member court "a crisis of serious proportions." By January 27 of this year, 59 judgeships remained vacant, with 19 Clinton nominees on hold.
Republicans in the House have also been busy, following up the piecemeal court-stripping legislation of 1996 with the omnibus Judicial Reform Act of 1997. One of its provisions would have required a three-judge panel to strike down state referenda instead of a single judge; another would have prohibited judges from issuing any ruling which would require a tax raise, making it almost impossible for judges to, say, enforce toxic waste cleanups. The Judicial Reform Act was never taken up by the Senate. But on January 19, while everyone else in the capital watched President Clinton's lawyers open his defense before the Senate, Orrin Hatch, chair of the Senate Judiciary Committee, quietly introduced the Judicial Improvement Act of 1999—a bill more or less identical to the Judicial Reform Act of 1997.
The Poverty of Originalism
The judicial reform of DeLay, Hatch, and Ashcroft claims its intellectual roots in a legal philosophy known as originalism, the essential idea behind which is that judges should not only consider what the Framers of the Constitution wrote, but exactly what they meant when they wrote it. It's a deceptively simple idea which, as espoused by the likes of Antonin Scalia, Leo, Calabresi, and others, contravenes a vast sweep of jurisprudence from the past 50 years. Many originalists argue, for instance, that the First Amendment only protects speech that is explicitly political, and that the Fifth Amendment provides no support for Miranda warnings and other modern-day, due-process niceties. Most originalists also claim that "judicial activism" threatens the principle of republican government by allowing the judiciary to usurp the law-making prerogatives of the executive and legislative branches.
But while nearly all originalists are politically conservative, they are hardly a monolithic group. Originalists like Law and Economics guru Richard Epstein are skeptical of government attempts to legislate morality, thus pitting them against a social conservative like Robert George of Princeton, who views originalism through the lens of natural law theory. Nor are all originalists believers in judicial restraint, because strict originalism often recommends activism—for instance, in disavowing the loose interpretation of the commerce clause upon which thousands of federal laws are based. Antonin Scalia is both the most famous originalist and the most inconsistent; although he describes himself as textualist first and an originalist second ("If you are a textualist," he says, "you don't care about the intent, and I don't care if the Framers of the Constitution had some secret meaning in mind when they adopted its words"), he tends to be either originalist, textualist, or even activist as the need arises.
All this is to say that "originalists" come in many different stripes, and one person's judicial originalism is another person's judicial imperialism. Pure originalism is viewed with some skepticism by the majority of the legal profession, who wonder, for example, exactly who are the Founders—those who signed the Constitution, the delegates who ratified it at the state conventions, or the entire founding generation? And how do we discern their intent? The same questions arise about the Bill of Rights. Is the intent that of members of the House, of the Senate, or of the state legislatures that ratified the amendments? The fact that the Constitution required months of fierce debate to write and emerged in its final form as a compromise document militates against originalists' implicit assumption that the Founders' "intent" constitutes some easily discernible rock of principle upon which all jurisprudence can be built.
Yet at the same time, nearly all mainstream legal scholars agree that the original meaning of the Constitution is important. It's just that they don't always agree on how important. Likewise, some liberals, like the philosopher Jeremy Waldron, who spoke at October's APPI conference, agree that "judicial imperialism" today constitutes a threat to the principle of republican government. And a whole generation of legal scholars—most prominently Yale's Akhil Reed Amar—have responded to the originalist challenge by rooting around the historical loam to buttress liberal jurisprudence. Moreover, "judicial restraint," a term which today's judicial reformers bandy about as a simplistic synonym for "originalism," has among its champions most of the federal bench. "There is a general view, among liberals and conservatives, that judges are not supposed to be jumping out to decide controversial cases for the hell of it," says Judge Gilbert Merritt of the Sixth Circuit. "Judicial restraint pervades the thinking of judges generally."
While DeLay asserts that it is today's courts that "recognize no limits on their authority," the true high tide of judicial activism came two generations ago; it came not with Roe v. Wade, in 1973, as abortion-obsessed social conservatives believe, but rather with a series of decisions in the 1950s and 1960s on congressional redistricting, criminal rights, and segregation. Over the past two decades, the federal bench has become more restrained and conservative than at any time since the Lochner era, when the Supreme Court made a habit of striking down most of the labor and other regulatory legislation that came across its docket. The majority of federal judges today, from the district courts to the Supreme Court, are Republican appointees. According to a 1996 study, the proportion of liberal decisions issued by Clinton appointees was not significantly higher than those handed down by Gerald Ford's appointees. "Frankly, conservatives stacked the bench during the Reagan and Bush years," says Elliot Mincberg of the liberal advocacy group People for the American Way. "But you don't hear progressives calling for court-stripping."
Are judicial reformers like DeLay and Ashcroft originalists, judicial restrainters, strict constructionists, or textualists? Are they libertarian originalists or traditionalist originalists? The fact is that is that no legal theory label really fits—because "judicial reform" has nothing to do with the law, and everything to do with politics.
"Politicians are very rarely much motivated by the force of legal reasoning," NYU Law Professor Chris Eisgruber notes dryly. As a rule, neither Democrats nor Republicans have been particularly consistent when it comes to issues like judicial activism and original intent. When the Senate debated the McCain-Feingold campaign finance bill last year, Republicans like Mitch McConnell—a sponsor of last year's anti–flag burning amendment—suddenly became resolute defenders of broadly defined free speech. Likewise, throughout the impeachment proceedings against President Clinton, Democrats suddenly became vociferous exponents of original intent. But the "judicial reform" movement, with its tenuous attachment to originalist legal theory, has crystallized Republican hypocrisy in a way that reveals just how overtly ideological right-wing attacks on the bench have been. When conservative judges issue blatantly activist decisions—as when Judge John Sprizzo absolved two anti-abortion protestors who had illegally blockaded a clinic on the grounds that they had acted out of "sincere religious belief"—neither congressional Republicans nor conservative advocacy groups have cried "judicial activism." And although judicial reform advocates howled in protest when federal judge Thelton Henderson enjoined California's Proposition 209, which banned affirmative action, they were silent when Judge Michael Hogan issued an identical injunction against Oregon's referendum legalizing assisted suicide. Indeed, judicial reformers have been especially hypocritical when it comes to such referendums. Over the past five years, judges who block referendums that advance the agenda of social conservatives—like Colorado's anti–gay rights "Amendment 2"—have been automatically attacked for "overturning the will of the people" and "assaulting the Constitution," regardless of the actual legal merits of the law being approved. "This is not a serious evaluation of the constitutional role of judges," says Judge Jon O. Newman, chief judge of the Second Circuit Court of Appeals. "Conservatives say, 'If they make a ruling we like, we bless them, if they make a decision we don't, we pillory them.'"
But conservative antipathy to the courts is not new. What is new is that ultraconservatives like DeLay and Pat Buchanan are no longer on the fringe; today, they control the Republican Party. And they are now poised to bring the same combination of grassroots power, fundraising prowess, moral fervor, and rhetorical bombast to their latest cause that they have to every other issue since 1994.
Tom DeLay first entered politics as a state representative for Fort Bend County, Texas in 1978, five years after the Roe v. Wade decision established a constitutional right to abortion. At the time, the successes of liberalism during the 1960s and early 1970s—on issues like abortion, school prayer, environmentalism—were galvanizing the birth of a new kind of conservatism. Christian evangelicals had abandoned their long-held belief in staying out of politics, and were begining to replace the elite, intellectual conservatism of William F. Buckley and Irving Kristol with the grassroots, sectarian conservatism of Pat Robertson and Jerry Falwell. Well-organized groups like the Christian Coalition and the Moral Majority were expanding rapidly throughout the South, South west, and agricultural Midwest, putting a new generation of conservatives into state and local office.
DeLay, the first-ever Republican state representative from Fort Bend, was one of them. Before entering politics, DeLay owned a pest-control business in Sugar Land, Texas. His pet issue was (and remains) regulation, especially environmental regulation. Until he emerged as the leader of the Clinton impeachment crusade this fall, DeLay was probably best known as the colorful Texas politician who frequently referred to the EPA as "the Gestapo" and the Nobel Prize committee as "Swedish environmental extremists."
"I woke up one day," DeLay told the APPI, "realizing that the judiciary had turned themselves into a regulatory branch." It's a seemingly casual political metaphor—the Supreme Court as just another federal regulatory agency—but it is central to DeLay's view of government. In the 1970s, when DeLay's political generation first took office, Christian conservatives had begun to craft a narrative that emphasized the supposed moral bankruptcy of the 1960s counterculture. According to the logic of Richard Nixon's newly proclaimed "Silent Majority," conservatives represented the real America, while liberal elites enforced their own mandates by way of the federal government and the courts. By 1994, when Newt Gingrich led the GOP to its first House majority in 44 years (and Tom DeLay was elected majority whip), this narrative of social conservatism—by now proclaiming the illegitimacy of liberalism and all its postwar creations—had become the bedrock of fin-de-siècle Republicanism.
Over the last two years, judicial reform advocates in Congress have begun to merge the rhetoric of "judicial imperialism" with the broader conservative narrative of liberal illegitimacy, using "judicial restraint" and "originalism" as political slogans rather than as nuanced legal philosophies. "Who are the beneficiaries of the Court's protection?" asked Patrick Buchanan in a recent speech. "Criminals, atheists, homosexuals, flag burners, illegal immigrants (including terrorists), convicts, and pornographers." The Heritage Found ation has turned out a steady supply of "judicial imperialism" screeds both through its lecture series and through its house journal, Policy Review. The Family Research Council has issued a brief arguing that "many judges have revealed their belief that the people are no longer fit to govern themselves" and that "these arrogant legal elite [sic] have also shown contempt for the constitutional system and a blatant disregard for their limited role by dictating so-called legal rights which have not been enacted by the people." Network-building groups like the Coalition for Judicial Restraint, a collection of 500 conservative organizations ranging from the Traditional Values Coalition to Ameri can Loggers Solidarity, have worked to make "judicial reform" a staple issue of the conservative grass roots. The Free Congress Foundation's Paul Weyrich, conservative doyenne Phyllis Schafly, and Focus on the Family's James Dobson have all urged impeachment of judges in their constituent newsletters and fundraising mailings. "The Court's new role," intoned Buchanan in 1996, "is as adversary to the people."
So far, few judges seem to regard these attacks as a serious threat. "Look," says Judge Merritt, "I think that what DeLay and others have done is irresponsible, but we've had congressmen attacking judges all my life." Judge Newman concedes that "tensions are higher now than they were 25 years ago" and that "there's an antagonism there that wasn't there a few years ago." But he says he views it as a series of isolated incidents, not a concerted effort. These attacks, says Newman, have had "no effect on the vast majority of judges." And few Republicans, in the wake of their most recent debacle, will be in the mood to impeach federal judges. But they may not need to.
United States v. Bayless, a 1996 case involving drug couriers in Washington Heights, was in most respects a typical search-and-seizure case. Prosecutors contended that police had had probable cause to search the car of Carol Bayless because they had seen three men approach the car, put duffel bags into the trunk, and then run away. As evidence, they presented the testimony of one plainclothes officer who had witnessed the event. But in a videotaped statement taken by police, Bayless claimed that the men had simply walked away, not run—a distinction crucial to the prosecution's claim of probable cause. The judge on the case, Harold Baer, decided that the prosecution had not offered enough evidence to show that Bayless was less credible than the officer; consequently, he ruled that the police had not had probable cause to search the car and suppressed the evidence contained in the duffels—in this case, 80 pounds of cocaine and heroin. It was, says Judge Newman of the Second Circuit, a "perfectly routine" decision. But in his "dicta"—comments contained in a ruling which do not bear on the legal reasoning therein—Baer noted that, in his opinion, it would not in any case have been unusual for black men in Washington Heights to run from police.
Baer issued his ruling in late January. But although a number of press reports published immediately after Baer's decision—most prominently pieces by the New York Times's Don Van Natta, Jr. and columnist Bob Herbert—correctly distinguished between Judge Baer's somewhat inflammatory dicta and his substantive reasoning in the case, the right-wing propaganda machine was already swinging into gear. The Wall Street Journal issued a stinging editorial immediately after the decision, followed by a Paul Craig Roberts op-ed urging Baer's impeachment and a news article entitled "The Court New York Criminals Love." Conservative pundits and judicial reform advocates weighed in with a string of op-eds, Pat Buchanan and Bob Dole incorporated attacks on Baer into their campaigns, and Newt Gingrich opined that Baer's decision was "the perfect reason why we are losing our civilization." The effort to demonize Baer was so effective that, judging from the hundreds of erroneous press reports that ensued—nearly all of them asserting that Baer had suppressed the evidence because he believed all Washington Heights cops were corrupt—no one even bothered to read Baer's original ruling.
As pundits frothed, the U.S. attorney prosecuting the case asked Baer to re-hear the suppression motion based on new evidence. This time, the prosecution cross-examined Bayless on the stand and introduced the statement of a sergeant who had also been at the scene. The cross-examination revealed inconsistencies in Bayless' testimony, and the sergeant corroborated his subordinate's account. So—unsurprisingly, says Newman—Baer reversed his earlier decision. But according to nearly every news story which followed, Baer had simply caved in to political pressure. "The Baer case was grossly misreported by the press," says Judge Newman. "Baer didn't succumb to criticism either time. But it was a better story to write 'Judge Baer reversed himself under pressure.'"
The success with which conservatives managed to distort the Bayless case reveals the true threat of "judicial reform." In effect, the Baer controversy taught judicial reformers that even if they couldn't impeach liberal judges, they could thoroughly discredit them. Or, as the Alliance for Justice's Stephan Kline puts it, "DeLay never cared about impeaching judges. That wasn't the point. The point is to try to intimidate judges and get them to change their decisionmaking." Many judicial reform activists, such as Steven Fitschen, president of the conservative National Legal Foundation, have argued that the "mere threat" of impeachment could itself "have a salutary effect on the federal judiciary." Fitschen's own preferred targets for impeachment include the "Romer Six," the six Supreme Court justices who struck down Colorado's amendment barring homosexuals from protection under that state's equal rights laws. In 1996, conservative activists capitalized on the Romer decision to turn "judicial imperialism" into a galvanizing political issue—this time at the grassroots level, as both local and national religious right organizations updated "Impeach Earl Warren" with "Impeach the Romer Six." Indeed, some observers believe that controversy over the Romer decision may have even made the Supreme Court more cautious. "Last year they were talking about impeaching [Supreme Court Justice Anthony] Kennedy in light of the decision in Colorado," says People for the American Way's Mincberg. "And guess what? This year, the Supreme Court has a much less controversial agenda."
From their position on the bench, judges may not realize just how effectively judicial reformers have fused arid "judicial imperialism" nostrums with grassroots God-and-country conservatism. But the American Bar Association (ABA), which has traditionally served as defender of the necessarily unvocal federal bench, has grown increasingly concerned about what they consider threats to "judicial independence." In 1996, the ABA established a watchdog committee on judicial independence, which, after issuing an ominous report in 1997, was made permanent. "The very specter of someone raising impeachment is disturbing," says Robert Evans, the ABA's legislative director.
It's also frightening to consider that conservative Republicans like Orrin Hatch, Jeff Sessions, and Henry Hyde are generally considered among the more cautious voices of reform. While Rehnquist was criticizing Hatch for being too hard on Clinton nominees, Senators Slade Gorton and Phil Gramm apparently decided he was being too soft, and last year pushed a bill that would have made it easier for individual Republican senators to block judicial appointments. Writing in the National Journal, Kirk Victor called the move "a direct shot at Hatch," who "found himself in the unusual position of defending his conservative credentials." Faced with unaccustomed pressure on his right flank, Hatch took the lead this year by introducing the Judicial Improvement Act of 1999.
There are, of course, reasonable and principled arguments that can be made against certain instances of judicial activism. But the caricatured notion of "judicial imperialism" that DeLay serves up to the conservative grass roots is a simple and appealing political confection that bears little resemblance to the more careful and nuanced arguments that legal scholars—even staunch conservatives—make. And if the impeachment drive does not produce more Judge Sarokins, it will certainly produce more Judge Baers. What is truly dangerous about judicial reform as practiced by Tom DeLay and his allies is its tendency to cast judges as democracy hating, abusive, and power hungry—in other words, as personally corrupt. While Republican court-stripping legislation leaves the federal courts malfunctioning and diminished, the cumulative effect of judicial reformers' calls for impeachment and sustained attacks on individual judges is to make "judicial imperialism" a household term among conservative constituencies—and to erode faith in one of the foundations of American democracy.
There is a real danger that a continuous barrage of wrongful accusations can have an adverse impact," says Fifth Circuit Judge Henry Politz. "It is critical," he emphasizes, "that the people have confidence in the court system. When people can't agree on something, they say, 'Well, I'm going to take you to court—they can get it right.' That is very important to a democracy."
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