Mr. (Justice) Breyer, Lobbyist
The New Threat To Judicial Independence
By The Directors Posted in The Courts — Comments (9) / Email this page » / Leave a comment »
With Senators Leahy, Durbin and Schumer already promising new levels of obstruction of President Bush's judicial nominees up to and including a promise to block - sight unseen - anyone the President nominates to the Supreme Court, and left-leaning "scholars" and activists calling for a new Court-packing plan along the lines of FDR's famous debacle, Senator Arlen Specter is providing covering fire for these partisan Democrats by announcing his intention to "review" the judicial opinions of Chief Justice Roberts and Justice Alito to see if they have "complied with" promises he believes they gave in their Senate testimony as to how they would rule on the bench.
Most Americans, no matter where they fall in the political spectrum, pay lip service to an "independent judiciary." However, based on the reaction -- or more accurately, non-reaction -- to this news from the left side of the spectrum, you would think they only get exercised when that independence is in danger from the Executive branch, as if Article III were not written specifically to warrant against an overreaching Legislature.
Senators dragging statements out of judicial nominees and then threatening hearings on whether they kept their promises on the bench should alarm anybody who (unlike Senator Specter) actually gives a hoot about judicial independence or principled application of the law. It's enough to make you rethink why we let nominees testify at all. But that's not the most disturbing aspect of this spectacle. What's even more alarming is that Specter has apparently been lobbied to join in this partisan attack on judicial independence by none other than former Ted Kennedy aide (and now associate Justice) Stephen Breyer:
Please read the rest below the fold. . .
The idea for a review came to Specter when he said he ran into Justice Stephen G. Breyer at the Aspen Ideas Festival in Colorado .
Breyer, an appointee of President Bill Clinton, drew attention last month for suggesting that Roberts and the conservative majority were flouting stare decisis, the legal doctrine that, for the sake of stability, courts should generally leave past decisions undisturbed.
"It is not often in the law that so few have so quickly changed so much," Breyer said, reading his dissent from the bench to a 5-4 ruling that overturned school desegregation policies in two cities.
Roberts has defended his rulings as applications of "existing precedent."
Specter, however, said Breyer's statement was "an especially forceful criticism of the Roberts court."
"I only noticed it in a couple of cases," Specter said of the court overturning or undermining precedents. But Breyer, in their Aspen conversation, said "there were eight."
We hope Justice Breyer isn't kibbitzing the Senate to inquire into why his views haven't prevailed with a majority of his colleagues on the Court. We'll wait for more explanation from Mr. Specter, but he's wading into questionable separation-of-powers territory here.
(Pro-life Blogs calls it an "overt attempt to undermine Roberts and also influence the political process in judicial selections, altogether compromising the separation of powers.")
To say the least.
A Legislature that interferes in the decisions of a Judiciary is a greater threat to judicial independence than a meddling Executive, because the former has a longer memory and control of the purse strings.
In his desire to control the Court's direction, Justice Breyer has invited a level of interference in his Branch that he would fight to the death were it coming at, say, Justice Scalia's behest. We note too that the mainstream media would be squawking itself hoarse were Justice Breyer replaced by the name "Justice Clarence Thomas."
Justice Breyer has apparently overlooked a new-fangled method of dispute resolution between Justices on the High Court: Talking to his colleagues to discover why they rule as they do, and trying to persuade them to adopt his view. One would almost be inclined to believe that Breyer feels like he's suddenly lost control of the situation, and is now reaching out to the Legislature to help him reassert control. In other words, Justice Breyer is inviting a constitutional crisis to achieve his own political ends.
Of course, that's not the end of the matter. Curiously, the Model Code of Judicial Conduct states, in Rule 3.2
A judge shall not appear voluntarily at a public hearing before, or otherwise consult with, an executive or legislative body or official, except (A) in connection with matters concerning the law, the legal system, or the administration of justice.
Couple this with Rule 1.3
A judge shall not abuse the prestige of the judicial office to advance the personal or economic interests of the judge or others, or allow others to do so
and one must question whether Justice Breyer has violated the Code of Judicial Conduct by seeking congressional intervention to stop his colleagues from expressing their reasoned legal opinions with which he disagrees and calling into question the professional reputations of his colleagues with whom he has a disagreement on a matter of legal interpretation.
Article III, Section 1, of the United States Constitution states:
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
While the ABA's model rules are hardly a dispositive guide to good behavior, they are a good starting place. Especially when the independence of the judiciary is at stake.