Public officials should exercise leadership by forswearing harsh and irresponsible rhetoric when discussing judges and court decisions and by unambiguously denouncing such rhetoric from others.
Very different circumstances in recent months have again elicited inflammatory comments about judges and the judiciary. Rhetorical excess is occasionally to be expected from citizens who profoundly disagree with court decisions. It appears to be part of the strategic arsenal of some interest groups which have staked their futures on taking control of the courts. In the case of elected public officials, however, we have a right to expect better. In particular, we expect an appreciation of the possible consequences of irresponsible rhetoric for members of that branch of government that is the weakest, not only because it lacks the powers of the purse and the sword, but also because judges are seriously disabled from defending courts and the judiciary in the forum of public opinion.
First, federal courts, in which Congress vested jurisdiction to "hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo," held that the claims that were in fact made on her behalf did not entitle the plaintiffs to the relief they sought under existing law. We were not surprised to read that a prominent interest group leader responded by asserting that this was "very dramatic proof of what we have been saying: that the judiciary is out of control." We were, however, depressed to learn the reaction of some members of the House of Representatives, including one of its leaders, who appeared to threaten reprisals against the judges who made those decisions and thus an effort to "control" the courts in a different sense.
Second, we were saddened by the personal tragedy of a federal judge whose mother and husband were assassinated by a deranged litigant who planned to avenge his failures in court by killing the judge. We were also saddened when this tragedy prompted a senator to make the remarkable suggestion that there might be some connection between acts of "courthouse violence" and judges who are "unaccountable to the public" making "political decisions." Since 1978 five federal judges or members of their families have been killed because the judges did their jobs. That fact alone should alert any thoughtful person to the risk that statements by public officials suggesting that court decisions can lead to violence may encourage precisely that. The risk should be especially clear in an increasingly violent world, where the deranged include those who are so defined only because of the extent to which they are willing to take a belief that ends justify means.
We are not the first to deplore the reactions to both of these events by some of our public officials. We are grateful that a number of commentators and prominent citizens, including other public officials, understand that partisan affiliation is irrelevant when either the health of our judiciary or the physical well-being of individual judges is in question. Moreover, we recognize that the senator in question quickly attempted to repair the damage caused by his thoughtless remarks. Yet, a "clarification" may not catch up with the original statement. Indeed, in the world of power politics, clarifications, disavowals, and repudiations may themselves be strategic, part of a bad cop/good cop routine that enables the participants to play to a variety of audiences the tune they want to hear. …