Open season on judges

April 06, 2005

IN MANY QUARTERS, judges tend to be regarded much like umpires. Those who agree with a ruling think the judge is brilliant. Those who don't often express their disappointment in epithets.

Foul language and the occasional tossed cup are usually the extent of hostility umpires face. Threatened retaliation against judges is growing far more fearsome.

Particularly chilling was the suggestion Monday on the Senate floor by Texas Republican John Cornyn that the recent spate of courthouse violence may stem from something broader than the personal grievances of disgruntled litigants. He called it a pent-up frustration with "raw political and ideological decisions" from judges who are "unaccountable to the public."

If so, he suggested further, the judges have brought it on themselves, particularly the Supreme Court, which he blamed for the "increasing divisiveness and bitterness of our confirmation fights."

Recklessly incendiary remarks from someone in high public office, yet it's the logical progression from House Majority Leader Tom DeLay's vow in the wake of the Terri Schiavo case. He promised to "look at an unaccountable, arrogant, out-of-control judiciary that thumbed their nose at Congress and the president." Then he said: "The time will come for the men responsible for this to answer for their behavior."

Such talk might be dismissed as the rantings of sore losers if judicial intimidation weren't a longstanding crusade for Mr. DeLay and one too often embraced by Americans who should know better, such as Mr. Cornyn, a former Texas Supreme Court justice.

The senator complained that judges these days aren't acting enough like umpires, using their independence to "call balls and strikes" and "resist those who would suggest that in order to be popular, you must subscribe to a particular way of thinking."

But judicial overreaching, like beauty, seems to be in the eye of the beholder. Republicans don't complain about the Supreme Court decision that settled the 2000 election dispute, though it was a bitter pill for the losing Democrats to swallow.

And it's not judges who are responsible for the divisiveness and polarization of American politics, but the politicians and interest groups whose inability to resolve disputes frequently leaves nowhere else to go but the courts.

A judge's work is rarely as simple as calling balls and strikes, or as Senator Cornyn also suggested, to simply enforce the law as written. Legislation has to be interpreted and measured against the Constitution and legal precedents. Law isn't static but organic, living and breathing within a framework that reflects its era. The Supreme Court sometimes changes its mind.

Making those rulings -- either way -- is no sure route to popularity, either. That's why Congress often can't make them. Mr. Cornyn, Mr. DeLay and others complaining about the courts ought to be grateful they've got someone willing to umpire -- epithets, tossed cups and all.

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