Who's undermining judicial credibility now?

By Thomas L. Jipping
web posted December 25, 2000

Janet RenoAttorney General Janet Reno, as we all know, has not exactly distinguished herself or her office over the past eight years. From the disaster at Waco to weakening the child pornography laws and covering up Clinton-Gore scandals, there's a lot to criticize. But she has an opportunity for a noble gesture demonstrating her even-handed commitment to principle. She can condemn the liberal campaign to undermine the Supreme Court's legitimacy just as she has attacked conservatives' criticism of judicial activism in the past.

Back in 1997 at the American Bar Association convention, Miss Reno warned of what she called "a kind of criticism that does not seek to argue the rightness of an issue, but to undermine the very credibility of the judiciary." The ABA itself created a Commission on Separation of Powers and Judicial Independence. Its chairman, Alfred Carlton, echoed her theme that "unjust criticism" of judges or courts "weakens the administration of justice."

Others in the legal establishment jumped on the bandwagon, pledging to protect judges from criticism. The president of the American Judges Association, wrote a column condemning what he called "judge-bashing" and the American Judicature Society started a Center for Judicial Independence in response to what it called "unfair criticism" of "judges who have issued unpopular rulings." The Constitution Project likewise decried supposed "attacks on judges for unpopular decisions."

At that time, the criticism was of judicial activism, of judges who make up the law rather than interpret it. I should know because the ABA Journal in 1997 dubbed me the "attack dog" of the conservative movement in this area. Even though that criticism was directed solely at the substance and the reasoning of judicial decisions, Miss Reno and others denounced it as a threat to judicial independence. The question is whether these defenders of the judiciary will likewise cry foul over the far more vicious liberal screed now hurled at the Supreme Court for its December 12, 2000, decision in Bush v. Gore.

And I'm not just referring to Jesse Jackson's nonsense about the decision being a "coup d'etat" for Bush. On CNN's "Crossfire" program, co-host Bill Press said this is "the most dishonest court in the history of the country." This was precisely what Miss Reno had condemned. Mr. Press assaulted not the decision of the Court but the members of the Court, directly impugning their integrity as judges. By calling them "dishonest" he was, in Miss Reno's words, attacking "the very credibility of the judiciary."

But it gets much worse. Appearing on CNBC's "Rivera Live" program, Harvard law professor Alan Dershowitz said that a legal team composed of Moses, Abraham, and Jesus could not have persuaded the Court otherwise. He accused the majority of ruling for Mr. Bush not on the basis of ideology or the merits of any legal arguments, but solely because they are Republicans and wanted the Republican candidate to win. Said the professor: "I will never stop criticizing this Supreme Court 'til the day I die." This truly is "judge-bashing," one of the very "attacks on judges for unpopular decisions" that the Constitution Project and others have been so worried about.

Their silence now is absolutely deafening and it exposes them for the hypocrites they really are. They care nothing for judicial independence, or public confidence in the integrity of the judiciary. They care only that activist decisions flow from the courts, decisions that suit their political fancy and produce the winners they favor. Don't hold your breath. These supposed defenders of judges will say nothing, absolutely nothing, about attacks by people they like against decisions they don't.

Thomas L. Jipping, J.D., is Director of the Free Congress Foundation's Center for Law & Democracy.

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