T Nation

A Threat To The Judiciary Or Not?

Interesting comments by Rehnquist.

Do you think judges are too powerful? Should they be more accountable to the people they serve? Do they feel they serve the people or the law?

Rehnquist Sees Threat to Judiciary

By David G. Savage, Times Staff Writer

WASHINGTON ? Ailing Chief Justice William H. Rehnquist said today that judges must be protected from political threats, including from conservative Republicans who maintain that “judicial activists” should be impeached and removed from office.

“The Constitution protects judicial independence not to benefit judges, but to promote the rule of law: Judges are expected to administer the law fairly, without regard to public reaction,” the chief justice, whose future on the court is subject to wide speculation, said in his traditional year-end report on the federal courts.

The public, the press and politicians are certainly free to criticize judges, Rehnquist said, but politicians cross the line when they try to punish or impeach judges for decisions they do not agree with.

His comments come as the new Congress faces what many predict will be a contentious battle over President Bush’s nominees to the federal bench. And if Rehnquist’s health forces him to announce his retirement, there would be more partisan wrangling over his successor.

The 80-year-old chief justice has been absent from the Supreme Court since he disclosed in late October that he was being treated for thyroid cancer.

Since 2000, when Republicans took control of the White House and Congress, many conservative critics have focused their ire on “judicial activists” on the bench.

In his report, the chief justice did not name names, but instead spoke of his concern for the "mounting criticism of judges for engaging in what is often referred to as ‘judicial activism.’ "

House Majority Leader Tom DeLay (R-Texas), for example, has repeatedly threatened to impeach liberal-leaning judges for their rulings, such as the ban on school-sponsored prayers.

“A judge’s judicial acts may not serve as a basis for impeachment. Any other rule would destroy judicial independence,” Rehnquist said. “Instead of trying to apply the law fairly, regardless of public opinion, judges would be concerned about inflaming any group that might be able to muster the votes in Congress to impeach and convict them.”

As the chief justice of the United States, Rehnquist leads the federal judicial system as well as the Supreme Court. Since taking office in 1986, he often has used his year-end report to set forth his views on controversies affecting the judicial system. The controversy over political leanings of judges and their rulings is one of them.

And despite Rehnquist’s reputation for conservatism, he has been just as willing to fault Republicans as Democrats when their actions and ideas threaten the courts.

In the late 1990s, for example, he faulted Senate Republicans for blocking votes on the judicial nominees of President Clinton. More recently, he faulted Senate Democrats for blocking votes on Bush’s judicial nominees.

In both instances, he said the nominees deserved a hearing and an up-or-down vote.

DeLay has often criticized judges when he thinks they have overstepped their authority.

“Many of these judges begin to grow drunk on their own power. Why shouldn’t the people have a right to impeach these out-of-control judges?” DeLay said in one 1997 statement.

Last year, DeLay called for Congress to enact legislation that would remove certain issues, such as the Pledge of Allegiance, from the jurisdiction of the federal courts.

DeLay was reacting to the ruling by the 9th U.S. Circuit Court of Appeals that held that Congress’ inclusion of the words “under God” in the Pledge of Allegiance used daily in the nation’s schools amounted to an unconstitutional official endorsement of religion. The Supreme Court, though divided on its reasons, later set aside that ruling.

Although Rehnquist and DeLay may agree on the preferred outcome on these issues, the chief justice said the proper way to challenge a misguided ruling is to appeal it to a higher court.

“The appellate process provides a remedy” for those who believe a judge has erred, he said.

And over time, the public can change the courts, he said, by electing presidents and senators who reflect their views.

Rehnquist is fond of citing the example of President Franklin D. Roosevelt in the 1930s. In his first term, a conservative Supreme Court struck down many of Roosevelt’s New Deal laws. After winning a landslide reelection in 1936, Roosevelt struck back and proposed to change and expand the membership of the Supreme Court.

Although his “court packing” plan failed, Roosevelt succeeded nonetheless, Rehnquist noted.

“President Roosevelt lost this battle in Congress, but he eventually won the war to change the judicial philosophy of the Supreme Court. He won it the way our Constitution envisions such wars being won ? by the gradual process of changing the federal judiciary through the appointment process,” he wrote.

During his second term, Roosevelt replaced five retiring conservative justices with New Deal liberals and transformed the high court for the next generation.

Though the 18-page report issued today includes passages that blandly recite statistics, much of it expresses the distinctive ideas and writing style of the chief justice.

An amateur historian, Rehnquist has written four books as chief justice, including “Grand Inquests,” a study of the impeachment trials of Supreme Court Justice Samuel Chase in 1805 and of President Andrew Johnson in 1868.

He concluded that those failed impeachments strengthened the independence of both justices and presidents. Impeachment should not be used as a partisan and political weapon, he wrote, but instead should be reserved for instances of high-level corruption.

By coincidence, shortly after his book appeared, Rehnquist as chief justice was called upon to preside over the Senate impeachment trial of Clinton in 1999. At its conclusion, he announced Clinton’s acquittal on all the charges.

Rehnquist made only a brief reference to his illness in his year-end report.

“On a personal note, I also want to thank all of those who have sent their good wishes on my speedy recovery,” he wrote.

Court officials said he has continued to work at home. And to the surprise of some, he also has announced that he plans to give the oath of office to Bush at his second inauguration on Jan. 20.

I agree with Rehnquist’s assessment. Sounds like common sense stuff to me, although there does seem to be a particular flavor of kool-aid related to this issue out there being imbibed upon quite frequently.

I think any use of impeachment as a political club threatens the independent judiciary, and goes against the idea of giving federal judges life terms.

However, we should note that an independent, apolitical judiciary should not be doing the job of the legislature (on any issue, no matter how much one side or the other wishes it would hurry the legislature up) – and if it weren’t, it would have less to worry about from the politicians.

One quibble with Rehnquist’s historical analysis – Roosevelt used his proposed court-packing plan to enforce his political will on the judiciary. Just because it wasn’t enacted does not mean it was not effective.

U of Wisconsin Law Prof Ann Althouse thinks the Rehnquist position goes too far:

Judicial independence.

Linda Greenhouse has this account of the Chief Justice Rehnquist’s year-end report. A key point:

[Begin excerpt] "There have been suggestions to impeach federal judges who issue decisions regarded by some as out of the mainstream." ...

Chief Justice Rehnquist said ... that it had been clear since early in the country's history that "a judge's judicial acts may not serve as a basis for impeachment."

"Any other rule," he added, "would destroy judicial independence," since "judges would be concerned about inflaming any group that might be able to muster the votes in Congress to impeach and convict them." [End excerpt]

What “suggestions” is he referring to? Greenhouse cites the House Reaffirmation of American Independence Resolution, which states that “inappropriate judicial reliance on foreign judgments, laws or pronouncements threatens the sovereignty of the United States, the separation of powers and the president’s and the Senate’s treaty-making authority.” One of the resolution’s sponsors alluded to impeachment as a remedy. It’s hard to imagine that any judge feels any kind of threat of impeachment merely for citing foreign law. The resolution refers to “inappropriate … reliance” on foreign law. Presumably, at some point, the use of foreign law really would damage United States sovereignty to the point where a judge ought to be removed.

I don’t agree with the bright line rule Rehnquist seems to proclaim: a judge ought never to be removed for anything he does as a judge. (I’m not looking at the full text of the report as I write that.) And I don’t see why judicial independence is “destroy[ed]” simply because a judge would be “concerned” about motivating people to call for his impeachment. Federal judges have extremely secure positions, founded on the Constitution’s provision for lifetime appointments. But the Constitution also provides for impeachment, and some pushback against judicial power is a good thing. The demand for an absolute rule against impeachment for “judicial acts,” lest the judge feel any pressure from the political sphere, is actually quite extreme.

Anyway, this issue of using foreign law is a lively current issue, and I note that Justices Scalia and Breyer are going to have a big debate on the subject at American University in Washington, D.C. on January 13th. My old conlawprof, Norman Dorsen, is going to moderate. Too bad I can’t attend. I’m mean, too bad I’m not going to travel to Washington just to attend. But I see they are going to livestream, and I’m planning to simulblog.