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Letter
to the Editor: Chicago Daily Law Bulletin May 24, 2005 [Last] week, Judge Joan Humphrey Lefkow appeared before Congress to urge that more resources be committed to ensure the safety of federal judges. Judge Lefkow's moving testimony reminded all of us of that terrible morning in February when we woke to the news that Judge Lefkow's husband and mother had been murdered, and the fear that the killings were an act of intimidation, a crime not only against human beings but against our system of justice. Judge Lefkow's testimony comes at a moment when the idea of an independent judiciary is under attack, and it invites Congress and the public to reflect on the wisdom of the Founders' decision to establish an independent federal judiciary. Federal judges are facing increasingly strident and unwarranted criticism from political figures (both elected and unelected) protesting the power wielded by "unelected" and "activist" judges. On May 1, Pat Robertson claimed that federal judges are a more serious threat to America than the Civil War, World War II, and the September 11 terrorists. Robertson also called the rulings in the Terri Schiavo case "judicial execution." On April 8, Phyllis Schlafly said that Supreme Court Justice Anthony Kennedy should be impeached for deciding that the Constitution forbids the death penalty for juveniles. The same day, Edwin Vieira said that Kennedy should be impeached because his philosophy, as evidenced in his opinions, "upholds Marxist, Leninist, satanic principles drawn from foreign law." Vieira also said (twice) that the Supreme Court should be dealt with by Joseph Stalin's maxim, "Death solves all problems: No man, no problem." It is tempting to dismiss these comments as extremist rhetoric from the lunatic fringe. Unfortunately, they are being echoed by some elected leaders who, frankly, should know better. House Majority Leader Tom DeLay and Representative Steve King have pointedly noted that Congress has the power to abolish lower federal courts or cut off their funding. DeLay also said that the judges involved in the Schiavo case would have to "answer for their behavior." A spokesman for House Judiciary Committee chair F. James Sensenbrenner denied that our Constitution established a "completely independent judiciary," calling that a common "misunderstanding." Senator John Cornyn speculated that unpopular rulings could lead people to "engage in violence" against judges. We do not suggest that our elected officials would intentionally promote physical violence against judges or their families, or that conservatives have a monopoly on intemperate criticism of judges. Nevertheless, we all must recognize the confluence of verbal and physical attacks on the judiciary for what they are: a serious threat to our democracy and the rule of law. As they consider Judge Lefkow's request for improved security for federal judges, elected representatives should reflect on the principles on which the United States was founded - i.e., the basics of a high school civics course. One of King George III's most significant abuses, as noted in the Declaration of Independence, was that he had "made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries." The Founding Fathers regarded an independent judiciary as fundamental to liberty and justice. To protect judicial independence from political partisanship, favoritism, and encroachments by the executive and legislative branches, the Constitution gave federal judges life tenure and guaranteed that they could not be removed merely because their decisions were unpopular. As further protection against a politicized judiciary, the Constitution also rejected the notion of popular election of judges. Instead, federal judges are appointed by the President, with the advice and consent of the Senate. In the 216 years since the Constitution was ratified, the principle of judicial independence has remained fundamental to our system of government and a hallmark of the rule of law. Every year the U.S. State Department reports on the status of the rule of law in countries around the globe, and one of the most common criticisms in these reports is that the judiciary lacks independence because judges may be removed for deciding cases contrary to the will of another branch of government. The Chicago Council of Lawyers supports Judge Lefkow's request that Congress take action to protect the safety of our federal judges. Especially in these troubled times, our leaders should reaffirm their commitment to an independent judiciary, rather than trying to undermine it. Locke E.
Bowman
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