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Our nation’s courts are on the brink of a quiet crisis — one that has received few headlines, no publicity campaigns by concerned Hollywood stars, and little attention from the general public, but it is nonetheless real. It concerns a matter of pivotal importance to us all: Will our courts remain fair and impartial protectors of our rights, as they have been since our nation was founded? Or will they become the partisan tools of political extremists intent on forcing judges to carry out their wishes? It was exactly 100 years ago this summer that noted legal scholar Roscoe Pound stood before the American Bar Association and delivered a seminal address on the prevailing sources of dissatisfaction with the courts and how best to address them. His speech galvanized a bar-led movement to restore public confidence in the American judiciary. The time has come to step forward again. In the past year alone, federal and state judges who have made rulings that did not sit well with one political faction or another have been threatened with impeachment, budget cuts, abolition of their offices, and curtailment of their jurisdiction. Last week the House of Representatives simply bypassed the courts on a constitutional debate — with legislation stripping federal judges of jurisdiction to hear cases challenging the constitutionality of the phrase “under God” in the Pledge of Allegiance. Legislation is working its way through Congress requiring judges to disregard international law, on pain of impeachment. And last month the House Judiciary Committee held hearings on a bill, introduced by Chairman F. James Sensenbrenner Jr. (R-Wis.), to create an inspector general for the federal judiciary. Although Sensenbrenner insists that the inspector general would not target judges based on their decisions, he originally proposed the measure in the context of a speech on ways short of impeachment to “punish” judges for their decisions. The judicial branch is not sacrosanct, and no judge is above criticism. But to threaten the nature and extent of a judge’s tenure in retaliation for an unpopular decision smacks of intimidation. And an intimidated judge cannot be counted upon to follow the law and uphold our rights fairly and impartially. FIGHTING BACK This is not the first time our courts have been attacked. On the contrary, such onslaughts have come and gone at generational intervals ever since the nation was founded. The United States was barely a decade old when outgoing President John Adams sought to perpetuate the influence of his Federalist Party by creating 16 new judgeships and packing them with partisans, only to have incoming President Thomas Jefferson obliterate those judgeships before embarking on his own campaign to purge the judiciary of unwelcome judges by means of impeachment. A generation later, President Andrew Jackson openly challenged the Supreme Court’s power of judicial review, and some states defied Supreme Court orders. In the aftermath of the Civil War, angry abolitionists in Congress threatened to “annihilate” the Supreme Court if it interfered with their Reconstruction agenda, and Congress went so far as to strip the Court of jurisdiction over the constitutionality of a critical piece of Reconstruction legislation in a pending case. At the turn of the 20th century, populists and progressives did battle with federal and state courts for invalidating reforms aimed at regulating business and the workplace. Proposals to end life tenure for federal judges, eliminate judicial review, and adopt procedures to recall unpopular judges proliferated across the country. The next generation witnessed the New Deal and an angry President Franklin Roosevelt, who proposed to pack the Supreme Court and lower federal benches to reverse the courts’ anti-New Deal decision-making. In the 1960s the Warren Court engendered a new wave of anti-court sentiment that manifested itself in public calls for the impeachment of Chief Justice Earl Warren, a congressional investigation of Justice William O. Douglas, and proposals to strip the federal courts of jurisdiction to hear school-prayer and other categories of cases. These repeated waves of anti-court sentiment have been comparably intense but decreasingly productive over time. Congress and the president have always possessed the means to intimidate the courts, and in the 19th century they occasionally exploited those means. In more recent generations, however, calls to control the courts in Draconian ways have failed to gain traction. The reason is that over time the president, Congress, and the people they represent have come to appreciate the critical role that independent judges play in protecting the fundamental rights of all Americans. As policy-makers and the public have internalized judicial independence norms, it has become harder and harder for court antagonists to win support for their proposals. A NEW BATTLEFIELD So why worry now? The latest round of court-bashing will fail, just like the others, right? Perhaps. Then again, something a little different may be going on this time. This time the attacks have transcended disagreement with specific decisions and raised more fundamental questions about the role judges should play in a representative democracy. The common refrain of critics on the political right and left is that our judges have run amok and that the only cure for runaway “judicial activism” is to curb the activists. Nowhere has this trend been more visible than in the federal judicial appointments process, where politicians on both sides of the political aisle have accused each other of appointing judges who disregard the law and follow their personal political predilections like renegade legislators. The answer, they insist, is to thwart the appointment of the other side’s activists. Taken together, these attacks from the left and right cultivate the impression that judges nominated by presidents of both parties are largely indifferent to the rule of law and devote their lives on the bench to satiating their political appetites. The public is understandably conflicted. On the one hand, we have two centuries of growing respect for the judiciary’s role in American government and the importance of its independence from intimidation. Polling data indicate that the public continues to place greater confidence in the courts than in the other branches of government and generally opposes efforts to intimidate judges. On the other hand, we have an energized cadre of court critics who claim that judges abuse their independence at every turn and must therefore be controlled. If the public ultimately sides with the critics, norms grounded in a constitutional understanding of impartial justice could be jeopardized. And there is evidence that this is beginning to happen: A recent survey reveals that 56 percent of the public agrees with the statement that judicial activism has reached a crisis point. The same percentage believes judges who repeatedly make decisions contrary to the public’s values should be impeached. CALL TO ARMS The two of us come to this issue from very different directions. One of us is a Republican, a former federal judge, and a former FBI director. The other is a Democrat, a law professor, and a former congressional staffer. But we arrive at the same place: The threats and intimidation must stop. We do not dispute that political ideology can influence the way judges think about some legal issues. But seeking to control those influences by subjecting judges to the whims of partisan politicians is a frightening response because it damages the high standard of impartial justice. In short, the quiet crisis of confidence in our courts that some elected officials seem intent on provoking is dangerous because it jeopardizes an independent and impartial judiciary. The bipartisan Constitution Project’s Courts Initiative has published “Ten Principles for Preserving Courts’ Role in American Democracy,” a short and simple list that underscores the critical role that courts have traditionally played in preserving the separation of powers, governmental checks and balances, and the rule of law. If a crisis is to be averted, we all must reaffirm our commitment to these time-honored constitutional principles and work to steer our national dialogue on the courts away from the dangerous rhetoric of partisanship. Judges and lawyers need to do a better job of reaching out to a skeptical public and explaining what it is that courts really do; and they need to do a better job of listening to what the perceived problems are and responding constructively, not defensively. The first step to success is to overcome our complacency. History is littered with the wreckage of failed efforts to control and intimidate our judges, so it is only natural to assume that the latest round of attacks will likewise fail. But earlier attacks did not succeed, in no small part, because those who wanted to preserve an independent judiciary — such as Roscoe Pound — took action, joined the debate, and countered the attacks. If we are to preserve fair and impartial courts, we must be prepared to defend them again.
William S. Sessions is co-chair of the Constitution Project’s Courts Initiative and a partner in the D.C. office of Holland & Knight. He has served as director of the FBI and as chief judge of the U.S. District Court for the Western District of Texas. Charles Gardner Geyh is a professor at Indiana University School of Law and a steering-committee member of the Courts Initiative. He is the author of When Courts and Congress Collide (2006) .

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