Though she has distinguished neither herself nor her office, Attorney
General Janet Reno can depart taking a last stand for principle. She
can condemn the liberal campaign to undermine the Supreme Court's
legitimacy just as she in the past has attacked conservatives' criticism
of judicial activism.
In 1996, the American Bar Association created a Commission on
Separation of Powers and Judicial Independence. Its chairman, Alfred
Carlton, warned that "unjust criticism of judges, courts, or our system
of justice ... erodes public confidence and weakens the administration
of justice." Witnesses testifying before the commission decried
"personalized attacks that are focused on the result of a judge's
decision" and "inappropriate criticism." The commission published a
manual titled "Response to Criticism of Judges" outlining how lawyers
can defend judges.
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On Aug. 5, 1997, Miss Reno similarly warned the ABA convention of
"increasingly heated rhetoric" about the courts. She singled out "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 legal establishment virtually leaped onto this bandwagon,
pledging to protect judges from criticism. Judge Jeffrey Rosinek,
president of the American Judges Association, wrote a September 1997
column condemning "judge-bashing." The American Judicature Society
formed its Center for Judicial Independence that year to respond to
"unfair criticism" of "judges who have issued unpopular rulings." In a
September 1997 report, People for the American Way condemned
conservatives for "attacking court decisions." At a 1998 conference
sponsored by the Roscoe Pound Foundation, Professor Paul O'Neil revealed
a veritable plethora of problems in this area, from "anti-judicial
speech" and "judge-bashing" to "assaults on the judiciary" and other
"corrosive messages." Formerly Citizens for the Constitution, the
Constitution Project continues to condemn what it calls "attacks on
judges for unpopular decisions."
The evaluation and criticism back then focused on the merits and
reasoning of judicial decisions. I should know. An article in the ABA
Journal had dubbed me the "attack dog" of the conservative movement in
this regard. Because the legal establishment could not openly defend
such aggressively political judicial activism, these groups and
individuals turned their fire on the critics instead. Perhaps this is
why we will wait in vain for them to say a word about the vicious
liberal screed now hurled at the Supreme Court for its Dec. 12 decision
in Bush v. Gore.
On CNN's "Crossfire" program the following night, for example,
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."
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Appearing on CNBC's "Rivera Live" program the same night, Harvard law
professor Alan Dershowitz called this ruling "the most disgraceful
Supreme Court decision since Dred Scott." Saying a legal team composed
of Moses, Abraham, and Jesus could not have persuaded the Court
otherwise, Mr. Dershowitz accused the majority of ruling for Mr. Bush
not on the basis of ideology, 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 was
exactly the sort of "judge-bashing" that Judge Rosinek decried, one of
the very "attacks on judges for unpopular decisions" that so exorcised
the Constitution Project.
Surely the American Bar Association has responded by now. No doubt
it has called its members to use that manual its commission published in
defending judges against such criticism. After all, these messages are
far more "corrosive" than anything that sparked all the concern back in
1997. The American Judicature Society must already have engaged its
Center for Judicial Independence to defend the courts. People for the
American Way no doubt has the presses running, churning out a new report
to condemn these liberals for "attacking court decisions."
Well, actually, there's been not a peep from the defenders of the
judiciary. Turns out they only get hot and bothered when those they
don't like criticize decisions they do like. Today it's their friends
criticizing a decision that, they say, put someone they don't like in
the White House. That, apparently, changes everything.
Now we know what "unjust" and "inappropriate" criticism really is to
these liberals. It has nothing at all to do with the integrity of the
judiciary or public confidence in the administration of justice. Unjust
criticism is criticism of decisions favored by the legal and political
left. An "assault" on the judiciary is criticism of activist decisions
the left has decided are good. These defenders of judges will say
nothing, absolutely nothing, about attacks by people they like against
decisions they don't. Looks like it's already too late for Miss Reno to
leave at least one good thing behind as she leaves office.