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U.S. Supreme Court Justice Anthony M. Kennedy, speaking before a House of Representatives subcommittee on April 12, defended the independence of the federal judiciary even as he also said that criticism of the courts was “very healthy.” Kennedy’s comments marked the first time a justice has addressed Congress since the recent spate of criticism of the federal courts generated by the death of Terry Schiavo. After federal judges declined to order Schiavo’s feeding tube restored last month, House Majority Leader Tom DeLay, R-Texas, said that the judges responsible should have to “answer for their behavior.” He has since apologized for his comments. Kennedy and Justice Clarence Thomas appeared before a subcommittee of the House Committee on Appropriations for an otherwise routine hearing on the court’s $66 million budget request for the next fiscal year. The anger toward federal courts brewing among mainly conservative members of Congress surfaced when subcommittee member Representative Todd Tiahrt, R-Kan., expressed his concern about Roper v. Simmons. That March 1 ruling written by Kennedy struck down the death penalty for juveniles and cited, among other things, international consensus on the issue. Invoking international law went “beyond the rule of law,” Tiahrt said. Tiahrt’s comments were not presented as a question, and Kennedy did not respond directly on the international law issue, but he did say debate about the role of the courts was “tremendously energizing” and was a “democratic dialogue that makes democracy work.” At a later point, when Representative Steven Rothman, D-N.J., asked how justices interpret the Constitution in light of changing circumstances, Kennedy made a more impassioned defense of the American judicial system as “the envy of the world.” A key element of the system, he added, was the neutrality and independence of the judiciary. Without mentioning the recent criticism, Kennedy said that disparaging the judiciary’s neutrality while the rest of the world yearns for it “would be a tragedy.” For his part, Thomas also suggested that criticism came with the job of being a federal judge. “We have lifetime appointments because we are supposed to be criticized.” A long-time sports fan, Thomas added that, in his experience, when a game is over, “the referees get out of there fast. They don’t stand around high-fiving people.” Much of the hearing was spent discussing the court’s request for 11 more police officers, including one whose sole job would be “threat assessment.” Representative Ed Pastor, D-Ariz., asked if a sharp increase in threats against justices had triggered the request. Thomas did not want to get into specifics, but said that with the Internet and the 24-hour news cycle, “passions get pretty high.” Pastor agreed, mentioning talk radio as an example. Thomas balked at the suggestion. “It’s not that, either,” he said. Thomas and talk radio host Rush Limbaugh are old friends, and Thomas hosted and presided over Limbaugh’s 1994 wedding. The hearing also had more lighthearted moments. Tiahrt referred at one point to the possibility of Supreme Court retirements, adding that he doubted that either of the justices present would make any announcements during the hearing. With a smile, Kennedy said, “Justice Thomas would probably like to announce mine.”

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