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April 5, 2007

Law prof questions threats to judicial independence

Although Pitt law professor Arthur Hellman and former Supreme Court Justice Sandra Day O’Connor both are concerned about threats to judicial independence in the United States, they disagree about what poses a threat.

While her 25 years’ experience on the Supreme Court and her retired status make the issue of threats to judicial independence an appropriate cause for O’Connor to embrace, in some instances she overstates the threats and in others she offers incomplete arguments, according to Hellman.

In a lecture last week titled “The Threat to Judicial Independence: The Cowgirl Who Cried Wolf?” Hellman argued that the three categories of threats O’Connor has focused on — violence toward judges, proposals to impeach judges and efforts to strip judges of jurisdiction — while important, are not immediate or severe. Hellman, who was delivering his inaugural lecture as the first holder of the Sally Ann Semenko Endowed Chair at the law school, said he borrowed his title from O’Connor’s description of herself in retirement as “just an unemployed cowgirl.”

Even before retiring, O’Connor had taken on the task of defending judicial independence, Hellman noted. In a 2005 speech at the University of Florida, she called for the country to be “ever vigilant against those who would strong-arm the judiciary into adopting policy.”

“She has done us a service by taking up this topic, and setting the stage for discussion,” Hellman said. “Unfortunately, though, in describing the threats to judicial independence, she presented us a picture that in some respects is overstated and in others incomplete. First, she has painted with too broad a brush in identifying what I would call the external threats; second, she has not adequately emphasized what I would call the internal aspects, and, finally, she hasn’t said anything about the confirmation process for federal judges, which, in my view, poses a threat.”

Hellman noted that O’Connor is joined by other judges and commentators in sounding the alarm regarding threats to judicial independence. But because of her status, visibility and outspokenness, the likelihood is that her opinions and formulations will be considered synonymous with the issue, he said.

While O’Connor has spoken on several developments that she sees as threats, Hellman concentrated on three of them: acts or threats of violence directed against federal judges; proposals to impeach federal judges, and political efforts to strip federal judges of jurisdiction over certain classes of cases.

“These examples represent three very distinct categories,” Hellman said. “The first is an easy one: No responsible person would support violence or threats of violence against judges. It is perfectly true that a federal judge’s husband and mother were murdered a few years ago, and a Georgia state judge was shot dead by a criminal defendant. But those killings are unrelated to controversial decisions.”

O’Connor also has drawn on violent incidents from other countries to support her arguments, which may be inflating the threat in the United States, he said.

“Individual judges do face threats from individuals, and Congress appropriately has taken action to deal with that kind of crime,” but these incidents are relatively rare and do not represent a group advocating a violent approach against judges, Hellman said.

In the second category of threats — non-violent, political measures to remove judges — O’Connor cites a 2005 conservative conference that called for mass impeachment of federal judges.

“That is something we have not heard suggested until lately,” Hellman said. “Impeachment for judges has been politically taboo since the Samuel Chase case in 1805,” where the attempt to remove Chase from the Supreme Court failed, he said.

“The prospect of impeaching judges would be a threat to judicial independence. But, how real is that prospect today?” Hellman asked.

In 2004, under the rubric of the Constitution Restoration Act, federal legislators aimed to take away the jurisdiction of the federal courts for disputes over public religious displays, such as the Ten Commandments. The proposed bill said that any judge who rendered opinions on such disputes could be removed from office, Hellman said.

Although the bill did not pass, “it had 37 co-sponsors. Not insignificant,” Hellman said. “But what stands out is who is not on the list of co-sponsors: The entire Republican leadership on the judiciary committee is missing. They kept their distance.”

In a Wall Street Journal op-ed, O’Connor commented on a 2006 state ballot initiative in South Dakota, which, as a state-level counterpart of the Constitution Restoration Act, called for jail for judges who ruled on religious displays. Proponents of that initiative admitted that they wanted to intimidate judges, but the ballot initiative got only 11 percent of the vote, even in “this so-called red state,” Hellman noted. “I’m certainly not criticizing Justice O’Connor for speaking out against [such movements]. It’s important to point out why these measures are dangerous and how far they depart from our judicial system. But it’s also important not to exaggerate the support they have.”

The third category, Hellman said, covers political measures that do have substantial support. In particular, O’Connor has expressed concern about legislation that would strip federal courts of jurisdiction over classes of cases, such as those that concern the Defense of Marriage Act.

In 2004 the House of Representatives did indeed pass such a bill. The vote was 233-194, including 77 Democrats, Hellman noted.

“Measures like this are generally unwise and some of them may be unconstitutional, but I don’t think they’re properly viewed as threatening,” he maintained. “Judicial independence is threatened by legislation that may intimidate judges or, in Justice O’Connor’s words, ‘strong-arming the judiciary’ to adopt legislators’ agendas. Most of these bills don’t fall in that category.” In addition, no federal judge would take action that would lend fuel to efforts to take jurisdiction away, Hellman said.

“I don’t deny that some of the supporters hope that this kind of legislation will extend an intimidation factor [to judges]. But even if that is what they’re hoping for, we should be concerned about effects, not intent. I’m confident that no such effects will result.”

But that’s not the end of the story, Hellman said. The three categories of threats identified by O’Connor all are external threats to the judicial institution. “But there also are internal aspects that do threaten judicial independence,” he said.

He offered an example of what judges themselves can do to threaten judicial independence. “An internal threat arises whenever judges allow themselves to be influenced in their decisions by considerations that have no proper place in legal decisions,” Hellman said.

Quoting Justice Anthony Kennedy, Hellman said, “Judicial independence is not conferred so that judges can do as they please, it is conferred so they can do as they must.”

This is true regardless of motive and regardless of whether a judge’s decisions are meant to advance an ideological good, aid a political party, get a judge promoted to a higher court or garner praise for a judge in the public press, Hellman said.

“These are unacceptable reasons,” he said. “For a judge to decide a case to advance an agenda — whether it is ideological, political or personal — rather than applying the rule of law is to pervert the very concept of judicial independence.”

A second internal threat is the federal judge confirmation process, which is played out in the U.S. Senate’s judiciary committee, Hellman said. “At the confirmation hearings, in fact, we know exactly what the questions are going to be when the chair recognizes one senator or another.”

Sen. Arlen Specter will ask where the nominee stands on interstate commerce law. Sen. Diane Feinstein will ask what the nominee’s position is on Roe v. Wade. These questions are predictable, Hellman said.

“There are variations on this depending if it’s a federal court nomination or a Court of Appeals nomination, but the purpose is the same: to get the nominees to swear allegiance to an aspect of law that is being tested in the courts, or to provide grounds for opposition [to confirmation]. It’s very difficult for nominees to provide what the senators want without compromising their independence.”

These kinds of directed questions also blur the barriers between law and policy, and between what law is and what it should be, Hellman said. “Why is that troublesome? A couple of reasons. One, it gives the impression that passing judgment is just an exercise of raw political power, and second it makes the judges out to be political actors to the extent that political actors see adjudicating as simply politics, so there’s no reason to provide independence.”

Most of the protection of judicial independence comes not from the Constitution, but from norms and traditions, he noted. Thus, if politicians stop believing that there is nothing to judicial independence outside of politics, it could collapse of its own weight.

“This is not a big problem, yet,” Hellman said. “But we should not become complacent about the cumulative effect of these questions.”

Moving back to O’Connor, Hellman said that she has taken the position that having an independent judiciary does not make it improper to criticize decisions. But then O’Connor has turned around and suggested that a threat to judicial independence lies in the raging and railing against decisions, essentially maintaining that harsh, uncivil criticism is a threat, he said.

“To say criticism itself is a threat, that won’t do,” Hellman said. “In my view it is irresponsible, and in the long run would undermine independence. To suggest that it’s okay to level criticism but only in language that is appropriate to a debating society, that lends force to assertions that the judges are becoming the new kings in our society.

“There is no evidence that either extravagant rhetoric or proposed legislation has succeeded in strong-arming any judge to decide a case one way or another.

“If I’ve taken issue today with Justice O’Connor’s formulations, it’s not from any doubt about her reputation or the value of the enterprise she has undertaken. It would be wrong to do that, but it would also be wrong to exaggerate the threat.”

The Sally Ann Semenko Endowed Chair was bestowed on Hellman, who came to Pitt in 1980, by Provost James Maher at the March 27 inaugural lecture.

Hellman is author of 34 refereed journal articles and 10 books, including his most recent book, “Federal Courts: Cases and Materials on Judicial Federalism and the Lawyering Process” (co-authored with Lauren Robel, dean of the Indiana University School of Law). His areas of specialization are civil procedure, federal courts and constitutional law.

Hellman has testified as an invited witness at numerous hearings of the judiciary committees in both the U.S. House and Senate, Maher noted. Hellman’s testimony has focused on a wide variety of legislative issues related to the federal courts, including the jurisdiction of the Supreme Court; the structure of the federal courts of appeals; federal judicial discipline; unpublished appellate opinions, and the constitutionality of legislative restrictions on the powers of the federal courts.

His series of empirical studies on the operation of precedent in the U.S. Supreme Court and the courts of appeals has been used as a basis for policy decisions at both the federal and state levels.

Hellman also is a leading academic authority on the Ninth Circuit Court of Appeals. From 1999 through 2001 he served as the only academician on that court’s evaluation committee.

An endowed chair is among the highest academic honors that the University confers. Funding for the Semenko endowed chair was bequeathed to the School of Law by the late Christopher Walthour, a Pitt law alumnus and an attorney in Westmoreland County.

—Peter Hart

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