Tags: Judges | Play | Difficult | Role

Judges Play Difficult Role

Wednesday, 23 March 2005 12:00 AM

It's true the federal courts are open 24 hours a day in Florida, as everyone was saying, but to get this kind of an order you'd have to convince the court that you were likely to win the case – to succeed on the merits, as we call it – and given the extensive litigation in the state courts, complete with efforts at Supreme Court review, that could be very difficult.

The sponsors of the bill had to know that, even if they were successfully selling the story that an order would be imminent. I predicted that you shouldn't predict – that it would be a much more complicated process than that; he might not grant the stay. Certainly, I wouldn't presume at this point. Or at least that's a slightly more coherent version of what I was trying to say, which happens to be accurate, and what has happened.

It's not rocket science – it's black letter. I also said, again, that even though there were memos floating around that pointed out how Republicans could make hay with this issue, and some Democrats are worried about losing points, I thought this was a lousy issue for anybody to be caught playing politics with, and that most people didn't approach it that way.

Somewhere in there, the anchor broke in to tell me someone was on the line who disagreed with my point of view. I thought: "How strange. What could you disagree with? That it is a good issue for partisan politics? That the federal courts won't apply the rules for equitable relief? That state courts are not deserving of respect? I was marching right down the middle."

It was the Schiavo family spokesman, Randall Terry. I should have expected it. Randall Terry founded Operation Rescue, what he calls the largest peaceful civil disobedience organization in American history, boasting of a record of 70,000 arrests between 1987 and 1994. He spent a total of a year in jail during that time and paid off enough in lawsuits, according to his Web site, to drive him into bankruptcy. What had always distinguished Operation Rescue from the other groups was the question of respect for the law. They didn't have it.

The state judge was a "tinpot." The state judiciary was "imperialist." If the federal judge didn't issue an order to reconnect the feeding tube right away, he would be "dragging his heels." The bill had not yet passed, and the federal judiciary was under attack. In an earlier pronouncement, Terry called the state judges "tyrants."

I have a lot of friends who are judges, and I trusted in that unwritten rule, even in the land of lawlessness, that they and their families were safe. So everyone was shaken up by what happened to the Lefkow family in Chicago, the cold-blooded murder of a judge's husband and aged mother, all the more so because after two years of living in fear from constant threat from a white supremacist group, it appears the murders may well have been the work of a deranged man in the kind of nothing case that anyone could have – the kind of case that led to a shootout just last week in an Atlanta courtroom.

The quote from Judge Lefkow's daughter that stuck with me was that her mother was feeling guilty because she had so wanted to be a judge. Is that such a selfish thing to want?

I'm not asking anyone to feel sorry for federal district judges, but my students who go to big firms make more money right out of school than they do. State judges tend to make even less – and then they have to raise money from lawyers to win office, or stay there. And the good ones are always being tempted by lucrative opportunities in private judging.

Yet we depend on judges to do one of the least noticed but most important jobs in a democracy, which is to keep the third branch of government operating and maintain respect for the rule of law just because they say so.

During the height of the civil rights movement, when crosses were being burned on the lawns of the courageous federal district court judges in the South, there came to be a sort of tradition in the courts to go out of your way to affirm these judges, to provide unanimous affirmances, to bend if you had to and – as my boss explained to me later, when his lawn was no longer aflame and he had become an appellate judge – to "give them a court," so as to maintain respect for the law.

Judges in ugly, difficult cases need that. And they need politicians to affirm them, or at least to stay out of their way.

I don't really blame Randall Terry for what he's saying, given what Congress is doing. He's casting aspersions on the state courts, and so are they. They spent seven years doing their job, resolving a dispute the family couldn't because we are a society governed by law and not force.

After hearing every single argument that was made in Congress, and might be made in a federal court, they applied Florida law and reached a result, which is the law. The federal courts are now his focus, because Congress set them up.

Randall's Terry's words didn't lead people to violence against abortion clinics, he would be the first tell you. He founded a peaceful movement. Calling judges "imperialists," "tinpots" and "tyrants" shouldn't really turn them into targets, should it?



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It's true the federal courts are open 24 hours a day in Florida, as everyone was saying, but to get this kind of an order you'd have to convince the court that you were likely to win the case to succeed on the merits, as we call it and given the extensive litigation in...
Wednesday, 23 March 2005 12:00 AM
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