The War on Judges; BATTLE OF THE BENCH: The Rhetoric Is Heated. the Political Will Is Strong. Inside the Right's Campaign to Rein in Judicial Clout
Rosenberg, Debra, Newsweek
Byline: Debra Rosenberg (With Stuart Taylor Jr., Cliff Sloan, Holly Bailey and Catharine Skipp Graphic by Andrew Romano)
It was meant as an olive branch in a time of escalating hostilities. For months, members of Congress had been railing against federal judges, lambasting their decisions and vying to limit their power. So Supreme Court Justice Sandra Day O'Connor embarked on a quiet campaign to quell the tensions. Several months ago O'Connor invited a handful of House Republicans to a private lunch at the court. In a small dining room outside her chambers, the group discussed judicial philosophy over sandwiches and a salad sprinkled with walnuts. "It was just the two branches of government reaching out, trying to keep the lines of communication open," says Rep. Steve Chabot of Ohio, who's been highly critical of judges like O'Connor who he believes stray from a strict reading of the Constitution. Another critic on the Judiciary Committee, Iowa Rep. Steve King, returned for his second visit. Last year he dined alone with O'Connor after a private tour of the court. Because the justice could not talk about any specific cases--or even controversial issues that might come before her--the conversation had its limits. "We didn't quite get to the meat of our discussion," King admits. "But it opened the dialogue."
The unusual private sessions suggest that concern over the rising tide of anti-judge rhetoric has rocked even the Supreme Court. Though judges have been dragged into the culture wars before, lately the animosity--and a range of new efforts to curb judicial power--have reached fever pitch. Now with the possibility of a vacancy on the Supreme Court perhaps only weeks away, the stakes and the vitriol are higher than ever. When federal judges refused to intervene in the case of Terri Schiavo, House Majority Leader Tom DeLay railed against "a judiciary run amok" and said judges in the case would have to "answer for their behavior." (He later apologized for his "inartful" remarks.) At a recent Washington conference, speakers raised the notion of "mass impeachments" for liberal judges. Focus on the Family founder James Dobson compared black-robed Supreme Court justices to white-robed Ku Klux Klan members. Ever since the husband and mother of a federal judge in Chicago were brutally murdered in February, judges have stepped up their reporting of death threats to the U.S. Marshals Service, which protects them. Now some judges are requesting increased security and canceling public appearances. In a speech earlier this month at Goucher College, O'Connor herself said she was surprised at all the violent threats she received. "I don't think the harsh rhetoric helps," she told the crowd. "I think it energizes people who are a little off base to take actions that maybe they wouldn't otherwise take."
Criticizing judges is something of an American tradition. During Reconstruction--and again during the civil-rights era--some lawmakers tried unsuccessfully to strip controversial issues from the courts' control. In the late 1950s, conservatives plastered IMPEACH EARL WARREN billboards across the country, angry at a string of controversial decisions on desegregation and communism (Warren survived). In the 1980s and '90s, liberal attacks on conservative Supreme Court nominees like Robert Bork and Clarence Thomas spawned a new era of political hostility.
Among conservatives, frustration with judges has been quietly building for years. They contend that "activist" judges are creating laws from the bench. "The courts are involved in everything," says Mark Levin, whose new book "Men in Black: How the Supreme Court Is Destroying America" became an instant best seller. "You have one branch of government that's entirely unaccountable." In the past few years alone, judges have irked social conservatives with rulings on the words "under God" in the Pledge of Allegiance, gay marriage, the Ten Commandments and so-called partial-birth abortion. …