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September 28, 2006

Constitution Day looks at judicial independence

Judicial independence was the topic at Pitt’s School of Law and more than 100 law schools nationwide as colleges and universities marked this year’s Constitution Day with special programming.

“This topic is both timely and critically important to the continued vitality of our nation’s system of government,” law school Dean Mary A. Crossley told a crowd of more than 75 people who gathered Sept. 18 in the Barco Law Building.

“By discharging their duties in deciding disputes fairly, impartially and free from threat, coercion, intimidation and retaliation, our courts have been essential in making our constitutional democracy work more than 200 years,” she said in her opening remarks. “The goal of the law school in participating in a national conversation about judicial independence is to help foster understanding of the role of the courts, a role that gives strength and life to our constitutional principles.”

Institutions that receive federal funding are required to observe the day with programming to commemorate the 1787 signing of the Constitution. On the Pittsburgh campus, following a video featuring U.S. Supreme Court justices Sandra Day O’Connor, Stephen Breyer and Anthony Kennedy, a panel composed of former federal judges Timothy K. Lewis and Robert J. Cindrich and law professor Jules Lobel offered their comments in a brief discussion moderated by law professor John Burkoff.

Burkoff observed that judicial independence is not merely an American legal issue, but a worldwide one. Recounting a conversation with several Albanian supreme court judges during a recent work visit to their country, Burkoff noted, “Their concern about judicial independence was how far could they go before they got shot. Typically that’s not the concern in the United States.”

While American judges’ lives rarely are in jeopardy, threats to judicial independence indeed exist, the panelists said.

Lewis said he sees a threat in today’s judicial nomination and confirmation process. “This has become a battleground for extremists in our country,” he said. “We see a continuing effort by both extremes in our political process today for distorting, misstating, exaggerating and flat-out lying, quite frankly, in an effort to try to sell their bill of goods. I regret to say it happens on both sides of the political spectrum and I think that is a very serious problem we have to confront,” Lewis said.

“Judicial independence depends on a diversity of views that are formed and made by well-intentioned men and women of integrity who are committed with simply getting it right as opposed to people who want to have it their own way.”

Lewis said he believes the fight involves a misinterpretation of the term “ideology” in the context of decisional independence.

“Ideological decision-making is bad,” he said, “But having an ideology as a judge is good. … I’m afraid the pejorative aspect of ideology too often invades the latter.”

He explained that a judge with a fixed or rigid ideology committed to a particular result, as opposed to one who weighs and balances all the interests, is bad. “But we want judges who bring to their jobs some kind of ideology that is rooted in their life experience and their professional experience as Americans … It’s a broader, healthier doctrinal ideology … that has to do with their ideas about liberty and equality. … That’s not bad, that’s good.”

Lewis admits he raised some eyebrows by testifying on behalf of Supreme Court nominee Samuel Alito, but did so to combat others’ portrayal of Alito as an ideologue. “I know having worked with him, he wasn’t. … He was simply a conservative and that’s okay. I believe it is key to maintaining judicial independence within a democracy that we have an array of views on the Supreme Court and among the judiciary, conservatives and liberals. That does not make one the bad kind of ideologue. That’s a good thing. I think that diversity of views … is a part of the corporate decision-making process. The best result usually is somewhere in the middle between the right and the left.”

Cindrich said, “I think the spectacle of federal officials threatening judges is probably the one you hear most about and you might think that is the biggest threat, but I would say that it’s not. … I think the real threat to judicial independence is insidious and that is the power of the legislature to strip the courts of their traditional function to serve as courts in most civil and criminal areas of the law.”

Cindrich recognized the framers’ wisdom in balancing the judicial branch of the federal government with the legislative and executive branches. “I think we can appreciate that we wouldn’t want a branch of government that is accountable to nobody,” he said.

Judges are protected by the Constitution in that they essentially are given life tenure and the promise that their salaries cannot be diminished; those rights are balanced by the fact that the president must appoint the judges and the Senate must confirm them.

The legislature also holds sway over the judiciary by its power to impeach federal judges and its control over funding for the courts.

Congress also has the power over the existence of the lower federal courts, he said, noting that the Constitution provides only that there shall be “a Supreme Court and such other inferior courts as the Congress shall from time to time ordain and set.”

“They can expand or contract courts and determine what jurisdiction a court will have. The kinds of cases the federal courts can hear can be modified by Congress,” he noted.

“That’s actually a bigger threat than some bellicose president or bellicose congressman. Removing a whole area of jurisdiction from the power of the court is a danger. Where we’ve seen it in recent years is in habeas corpus. Removing the court’s power of habeas corpus in immigration and naturalization matters, for example — they simply just don’t want the courts to be involved in those matters and passed laws that make a Kafkaesque procedure out of the whole immigration due process. The same thing is true with prisoners’ rights. So they could either extinguish the right of the court to hear certain kinds of cases or they could very much narrow it down.”

Cindrich labeled the legislature’s power a “much more insidious, much more clever way to undermine the courts.”

Lobel discussed the history of judicial independence in the context of the political climate’s impact on decision-making and questioned whether America might be on the verge of a crisis in light of continuing court-stripping attempts.

Citing cases in which the judiciary has “dropped the ball” (including support for interring Japanese Americans in detention camps during World War II), Lobel questioned, “To what extent is the judiciary willing to act when there’s real pressure on them, real heat on them, not from the personal perspective of someone who’s going to kill the judge, but when the president says ‘We’re in a time of war and you have to follow what I’m doing or else soldiers will die or Americans will be killed?’”

In light of the current political climate, he commended as “remarkable” the Supreme Court’s recent actions to protect the habeas rights of Guantanamo detainees.

“If Las Vegas had a betting line on the Supreme Court, any rational bettor would have said the court would rule against these, based on past history,” he said, adding, “This stands as a testament to judicial independence.” He conceded that the decisions might have been different if the court had been faced with such decisions immediately after Sept. 11, but noted that action is pending in Congress that again could put habeas rights at risk.

“In pending cases where the Supreme Court has ruled that it has jurisdiction and has suggested that people actually have rights, that these aliens have rights, the Congress is now poised to strip the court of its jurisdiction. …There’s also a provision totally removing without any exceptions court jurisdiction over these prisoners and over aliens being held in American custody around the world, so if anybody claims they’re being tortured, being imprisoned falsely, there will be no federal court jurisdiction even if right now courts do have jurisdiction,” Lobel said.

He labeled habeas corpus as “one of the most treasured rights in the Constitution,” central to English common law since medieval times.

“It is actually in the original Constitution, not in the Bill of Rights, and it is now under attack, and I think only an informed citizenry trying to sway Congress can prevent this from happening.”

Lobel cited the late Supreme Court Justice William Rehnquist’s assessment of three historic crises in American judicial independence as the near-impeachment of Justice Samuel Chase after the election of 1800, the court’s stripping of habeas jurisdiction following the Civil War and Franklin D. Roosevelt’s court-packing plan of the 1930s.

“If this plan goes through, I think this will be the fourth crisis,” he concluded.


Constitution Day observances took a variety of forms on Pitt’s regional campuses. At Pitt-Bradford and Pitt-Titusville, copies of the Constitution were distributed to students and films about the Constitution were presented.

UPT also placed information in the student lounge including results from the 1998 National Constitution Center survey relating teens’ knowledge of the Constitution to pop culture. Also, Mary Ann Caton, assistant professor of history and political science, answered questions on the Constitution in the Student Union.

At Pitt-Greensburg, assistant professors Beverly Gaddy of political science and Andy Franz of criminal justice presented a program, “King George vs. The Constitution: Imperialism and the Rule of Law,” followed by a student discussion.

Pitt-Johnstown scheduled a Constitution Day forum focused on the First Amendment. UPJ political science professor James R. Alexander moderated the discussion, “Free Press and Student Newspapers on Campus.” Panelists were J. Jackson Barlow, Juniata College professor of politics; William Toland, Pittsburgh Post-Gazette staff writer, and James F. Gyure, UPJ assistant to the president for enrollment management.

—Kimberly K. Barlow

Filed under: Feature,Volume 39 Issue 3

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