Over the past several decades, we have gotten used to judges being above the law, so it was perhaps inevitable that we would now be asked to get used to the idea that judges are above criticism.
In the wake of the Terri Schiavo case, where a Florida judge ignored Florida law and congressional subpoenas, and where federal judges ignored congressional legislation duly signed by the president, some people dared to suggest that judges had overstepped the bounds.
Immediately there has been a firestorm of reaction by those who think it is just fine to have judges make social policy, even if that policy is contrary to legislation, so long as it is in tune with “evolving standards,” political correctness or what people do in Europe.
The president of the American Bar Association declared that he must “most strongly condemn the horrific and devastating attacks on judges” in recent weeks, that judges should be able to do their work without “intimidation.”
These defenses of judges have been capped by statements by Supreme Court Justice Sandra Day O’Connor, who reports receiving “many threats” and blames “harsh rhetoric” that “energizes people who are a little off base” who can “take actions that maybe they wouldn’t otherwise take.”
Those who argue this way are lumping together two very different things — threats and violence, on the one hand, and criticisms of judges on the other. Worse, they suggest that criticisms of judicial activism are what led to such things as recent assassinations of a judge and of a judge’s family.
These assassins reacted with violence against the particular judges handling their particular cases. There is not a speck of evidence that they even read any of the criticisms of judicial activism in general or that judicial activism had anything to do with the way their particular cases were handled.
Sore losers have shot everyone from postal employees to talk show hosts, nurses, school children and innocent bystanders who just happened to be on the scene when they decided to vent their rage with bullets.
If we are to stop criticizing any group that has had some of its members killed by people who are “off base,” are those who talk this way going to stop attacking President Bush because of all the presidents who have been assassinated? Not a chance.
None of this is to minimize either assassinations or death threats. Some have suggested that the federal government should provide home security for its judges. Do it. But don’t try to shut up critics.
Ironically, in a wave of penny-pinching by a big-spending Congress, there has been a move to cut back on the amount of security provided to former presidents and their families. Someone pointed out that the widow of President Johnson still receives secret service protection. She should.
People who direct the policies of this nation and enforce its laws should never have to wonder whether what they decide to do will affect their own personal safety or that of their loved ones. Taking that issue off the table, so that people can concentrate on their duty, is worth spending a lot more money than it will in fact cost — and chump change compared to what is wasted on pork barrel projects.
As for Justice O’Connor, while she deserves all the personal protection the federal government can give her, she also deserves all the criticism she has received — and more. Her split-the-baby policy-making from the bench has made a mockery of the Constitution and turned the law into a vast field of uncertainty, in which frivolous lawsuits can abound.
We are already well down the slippery slope toward judicial rule, and Justice O’Connor is one of those who has repeatedly greased that slope in decisions full of sociological pieties, fashionable rhetoric and lofty attitudes, but lacking in legal principles from the Constitution of the United States.
Justice O’Connor now publicly decries “extreme rhetoric” in criticisms of judges. It is too bad that she does not also decry extreme judicial activism, of which she has been guilty on more than one occasion.
Thomas Sowell is a nationally syndicated columnist.