The nation’s founders realized that judges wouldn’t always be right, but they nevertheless insisted that they be independent. In the system they created, majority rule stops where the Bill of Rights begins. If judges weren’t shielded from the political passions of the day, the founders knew the Bill of Rights would quickly become the "Set of Suggestions."
Over thirty years ago, Federal District Judge S. Hugh Dillin ruled for the plaintiffs in a lawsuit alleging deliberate segregation of the Indianapolis Public Schools. Whatever the merits of the remedy he imposed (one-way busing), it is hard to fault his conclusion that districts had been purposely drawn to keep black and white students separate. It hadn’t exactly been a secret. Nevertheless, for several years following his decision, Dillin needed police protection. To suggest that his ruling was unpopular would be a gross understatement, and it is safe to say that an elected judge, or one otherwise answerable to the political powers that be, would have been unlikely to issue it.
Recent developments have led me to reflect on that bit of local history.
Attorney General John Ashcroft has ordered federal prosecutors to collect information on judges who give sentences lighter than those called for by the much-criticized federal sentencing guidelines. Judges deemed insufficiently “tough on crime” will be subject to various forms of intimidation; indeed, Congress has already begun an “investigation” into the “political bias” of a district court judge from Minnesota who thinks penalties for low-level drug offenders are too harsh.
Indiana’s very own Representative John Hostetler sponsored two amendments to an appropriations bill blocking the use of federal funds to enforce court rulings that he and others on the far right don’t like. One of those is the decision ordering Alabama’s controversial (elected) Judge Roy Moore to remove the Ten Commandments display he installed in his courthouse.
The President’s assault on the courts has been more direct. Bush has scorned peer evaluations of fitness for the bench, and his judicial nominees have been radical ideologues even by conservative standards. William Pryor, one recent nominee, has argued against the Voting Rights Act, refuses to consider Roe v. Wade binding law, has been accused of raising money from corporations he regulates as Alabama Attorney General, and has publicly derided the Supreme Court as “nine octogenarian lawyers.”
The problem with all this is that our Constitution sometimes requires that judges make unpopular decisions: to treat women as equals, protect black citizens’ right to vote, or recognize interracial marriages. The nation’s founders realized that judges wouldn’t always be right, but they nevertheless insisted that they be independent. In the system they created, majority rule stops where the Bill of Rights begins. If judges weren’t shielded from the political passions of the day, the founders knew the Bill of Rights would quickly become the “Set of Suggestions.”
It is the job of elected officials to reflect the wishes of those who elected them. It is the job of the courts to insure that laws passed by Congress and actions taken by the Administration are consistent with our Constitution. If our federal judges become willing servants of those who control the state, as this Administration seems to want, taking their mandate from the electorate rather than their honest reading of the Constitution, we will have traded the rule of law for a more genteel version of mob rule.