Tags: The | Threat | Supreme | Court | Justices

The Threat to Supreme Court Justices

Saturday, 23 April 2005 12:00 AM

Now, this attack would be laughable, it is so ridiculous, were it not for the fact that many of those listening don't know that, and the rhetoric used by DeLay betrays none of the absurdity of its substance.

What is wrong with a justice doing research? The words of the Constitution don't answer every question raised in every case in the court – in fact, many cases, based on statutes, contracts, regulations and the like, don't even involve the Constitution.

And as I found, when I went from a year of clerking on the U.S. Court of Appeals for the D.C. Circuit, considered by many to be the top appellate court, to the U.S. Supreme Court, the quality of the briefing actually went down – or at least it became much more uneven.

For many litigants, a Supreme Court appearance is a once-in-a-lifetime experience, akin to a victory in a legal lottery, and the briefs often read this way, a product of the lawyers' appellate inexperience, thus producing the need for the clerks and the justices to do their own thorough research to ensure that the case is rightly decided.

With staffs that are at most one-quarter the size of the lowliest member of Congress, much of the work actually gets done by the justice himself. When I clerked for Justice Stevens, there were two law clerks, two secretaries, a messenger and him. That was it.

When Stephen Breyer – now a Supreme Court justice himself, but then chief counsel to the Senate Judiciary Committee – and David Boies, his predecessor, came over to Justice Stevens' chambers to recruit me for the special assistant job on the committee, the thing no one could get over was the contrast between the Senate Judiciary Committee, where Steve had a staff of some 100 or more professionals working for him, and the Supreme Court, where Justice Stevens had a staff of two kids right out of law school.

My bet is Tom DeLay has 20 times as many professionals working for him as Anthony Kennedy does. Minimum.

If DeLay did some research of his own, he might discover that, in a democracy, the rule of law depends on an independent judiciary's ability to administer the law, and it needs the respect of the citizenry to do that. It doesn't help when leaders like him, who are under investigation for ethical abuses, cynically try to deflect attention from their own alleged wrongdoing by using the courts as targets.

That's what's going on here, as DeLay goes from target to target.

But it's not enough for me to stand up and say it. It's time Republicans silenced him, because his attacks on the judiciary are dangerous. Whether or not they actually increase the danger to judges, it is enough that they increase the sense of fear, and undermine the rule of law.

Is this what a congressional Republican "leader" should be doing? Former Solicitor General Ted Olson has spoken up, but he's not a politician and he's not an elected official. It's not his job to stand up to DeLay.

The problem for judges in this system is that they can't fight back. The reason they have life tenure is because they are supposed to be protected from just these sorts of fights. But the truth is, there's no protection from bullies who don't play by the rules except others from his own side who will stand up to him and enforce them.

Those voices have yet to be heard from, even though the subtle but real dangers of silence are all too clear.

COPYRIGHT 2005 CREATORS SYNDICATE, INC.

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Now, this attack would be laughable, it is so ridiculous, were it not for the fact that many of those listening don't know that, and the rhetoric used by DeLay betrays none of the absurdity of its substance. What is wrong with a justice doing research? The words of the...
The,Threat,Supreme,Court,Justices
605
2005-00-23
Saturday, 23 April 2005 12:00 AM
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