ISLAND VOICES
Judges must resist pressure from politicians
By Avi Soifer
On many levels, the case of Terri Schiavo is gut-wrenching, fascinating and unquestionably tragic. There are and should be intense differences of opinion in our society about core issues concerning life and death with dignity, protection for those most vulnerable, and the intersection of law and moral values.
A family split apart in public over these issues is terribly sad but hardly surprising. What is more surprising and indeed shocking, however, is the disregard for the basic building blocks of law reflected in the actions and words of members of both parties in Congress and the president.
It is not too much to say that it is a direct challenge to the rule of law when the House majority leader states, as Tom DeLay did, that there must be an investigation of the federal judges involved, threatening that "the time will come for the men responsible for this to answer for their behavior." But DeLay's statement is only the most recent outrage in a chain of events that Congress and the president touched off in their determination to overturn judicial decisions they do not like.
A long-distance judgment from Washington that attempts to decide a single complicated family dispute in Florida turns somersaults with the rule of law. Legal decisions are anchored in complex processes of finding facts and rendering detached judgments. Law is not and should not be based on popular referenda, nor should it reflect the results of focus groups or citizens' immediate responses to some simple either/or question. It does not ask the crowd in a virtual amphitheater to turn thumbs up or down after the highest court hands down a decision in a particular case.
The trial judge in Florida did what a judge should do. He listened at great length to all sides, weighed the evidence of many experts, appointed an independent guardian on behalf of Terri Schiavo and paid attention to his evaluation and recommendation. Only then did he reach his very difficult decision. His evaluation of the evidence and careful explanation for his decision withstood the scrutiny of review by many other judges as well.
In challenging scrupulous judicial process, political leaders in Washington thrust us into an Alice-in-Wonderland world. Words are blithely turned upside down. Judges who actually decided not to act, for example, are now abused as "activists." It may be particularly attractive to attack judges, in fact, because ethical constraints guarantee that basically judges cannot fight back.
Demagogues usually claim to speak on behalf of the popular will. And these days we are bombarded by chances to provide feedback through instant responses on television and opportunities to answer innumerable pollsters. Such feedback is meant to reflect raw emotion, of course, and visceral responses are undeniably interesting. But legal decision-making is, and should remain, different.
Legal decisions distinguish between totaling up gut reactions and the careful use of critical faculties. They require due process and must be based on factual evidence. They take time and are subject to careful review, with attention paid to complexity and context when independent judges do their jobs right. Even our juries make their decisions within strict constraints.
An additional threat lurks within the decisions of Congress and the president to try to bulldoze their way to a result that they and their base supporters favor. It actually implicates fundamental aspects of our constitutional democracy in several basic ways:
One basic pillar of constitutional law is federalism. As emphasized by a number of decisions by the conservative members of the U.S. Supreme Court over the past decade, federalism includes reliance upon and respect for the processes of the states and particularly of state judicial systems. Our decentralized state system includes the key idea that different states might decide the same questions in different ways.
In fact, legal decisions about family disputes and end-of-life judgments have been left almost entirely to the state courts. Precisely because a legal judgment is so different from a popular referendum, we defer to those judges who are best able to understand even a tragically difficult situation from a close-up perspective and to weigh the evidence in context before reaching a decision.
An even more basic element of American constitutional governance involves the commitment to the separation of powers. It is judges who decide individual cases, not Congress or the executive branch. Our federal judges have always had lifetime appointments so that they will not be beholden either to political power or to what might seem a very appealing outcome to a passionate majority.
The rule of law demands that legal judgments be based on evidence, not anecdote. Judges are supposed to consider precedents and context and nuance, not merely the raw emotions of the moment.
No matter how one feels about the tragic last days of Terri Schiavo, we should all agree that the pursuit of justice under law is more complex than simply getting the results any of us desires in a particular case.
We do live in perilous times when the House majority leader directly threatens the independence of the judiciary, as Tom DeLay did. Proclaiming that there would be retribution, DeLay added, "We will look at an arrogant, out-of-control, unaccountable judiciary that thumbed their nose at Congress and the president."
Name-calling from Capitol Hill is particularly unwarranted in the sensitive and difficult arena of the Schiavo case. And what a powerful leader in Congress calls nose-thumbing is better understood as the basic concept of separation of powers. In light of the egregious recent threats from DeLay and some of his compatriots, "judicial independence" actually is a particularly timely way to describe the vital American hope that our judges remain largely "unaccountable" and "out of control" by Washington power brokers.
Avi Soifer is the dean of the University of Hawai'i's William S. Richardson School of Law. He wrote this commentary for The Advertiser.
