October 05, 2006

Pryor's Judgment of Trial Versus Appellate

by PG

I confess that I align more with former Supreme Court Justice Sandra Day O'Connor in concern about judicial independence than I do with Eleventh Circuit Judge William Pryor Jr., so the following should be read with that grain of salt. But I did find his WSJ op-ed declaring that independence not to be "under siege" a little untruthful in its presentation of a couple of facts. Declaring, "Contemporary criticisms of the judiciary are relatively mild," Pryor says,

There have been recent and reprehensible incidents of violence and threats against judges, but we should not forget that those kinds of terrible crimes have occurred before. I work, for example, in the former chambers of the late Judge Robert Vance, who was murdered by a mail bomber in 1989. These offenses typically involve disgruntled litigants or dangerous criminals, not harsh critics of the judiciary as a whole. I am grateful that Congress reacted swiftly to these recent threats by providing home security systems for federal judges, which suggests that the public still appreciates the need for an independent judiciary.
Judge Robert Vance was tragically killed as part of a string of mail bombings that targeted individuals and entities whom the convicted bomber, Walter Leroy Moody, Jr., regarded to be civil rights proponents. TIME magazine's speculation that Vance was being punished for his actions as an appellate judge appears to have been correct, and one of Pryor's predecessors as Alabama Attorney General, Jimmy Evans, described Moody as having mounted a "terrorist attack" on the judiciary. I suppose anyone who murders another person is properly deemed a "dangerous criminal," and presumably Pryor meant specifically criminals who appeared before the judge they killed. Moody, however, never appeared before the Eleventh Circuit he had threatened as a whole with another mail package two days after Vance's death, this one disarmed by police before it could reach the court. Moody himself claimed that the bombings were the Klan's revenge against the Federal court system for its handling of a lawsuit. Angry litigants and criminals see the trial judges who have presided over their losses, and their grudges are likely to be personal, but threats to appellate judges seem more political. This makes sense; it is, after all, the appellate judges who are interpeting the law for millions of Americans.

Similarly, Pryor seems to miss the distinction between ire at appellate judges' "making" law, and annoyance with the excesses of the American trial system: "Readers of this publication need no reminder about the potential for judicial abuse. Time and again, the business community has turned to Congress and state legislatures to reform tort laws, class actions and securities litigation, to name a few. These efforts are a healthy part of our democratic process and a recognition of the fallibility of the judiciary." As a general rule, these are not problems created by judges -- though perhaps judges do not exercise their powers to correct abuses as much as they might -- but by plaintiffs and juries (and maybe attorneys). They represent the fallibility of the judiciary, as a body of judges, less than they do the fallibility of a system so dependant on the discretion of individuals.

What bothered me most is that Pryor simply ignores the specific examples O'Connor notes of attempts to trim judicial independence. He says, "I am grateful that Congress reacted swiftly to these recent threats by providing home security systems for federal judges, which suggests that the public still appreciates the need for an independent judiciary," without mentioning that Congress also has passed legislation to strip the federal courts of jurisdiction, and suggested laws that would punish judges who cited foreign law.

In this context of Congressional unfriendliness, Pryor also omits Senator John Cornyn's (R-TX) infamous remark,

"I don't know if there is a cause-and-effect connection, but we have seen some recent episodes of courthouse violence in this country. . . . And I wonder whether there may be some connection between the perception in some quarters, on some occasions, where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in, engage in violence. Certainly without any justification, but a concern that I have.
I do agree with Breyer and Pryor that the rule of law and practice of judicial review are sufficiently established in most Americans' minds that we rarely have to fear mass disobedience; not only Alabama, but the nation generally, "has come a long way since the days of Governor Wallace standing in the schoolhouse door." What may be more worrying is the "John Marshall has made his decision; now let him enforce it!" story of Andrew Jackson's defiance of a Supreme Court decision. I've already remarked the legislative branch's attitude toward to the Supreme Court, and the executive hardly seems more genuinely respectful. I doubt the Bush Administration ever would make such a declaration honestly, but there must be some equivalent to the signing statement that would permit them to avoid abiding by another branch's decision without openly refusing to do.

October 5, 2006 05:15 PM | TrackBack
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