LAW REVIEW: Bar Brawl The ABA prepares to fight dirty

THE conservative campaign against judicial usurpation may not be having much effect in the U.S. Senate, but it is clearly making some people nervous. Phil Anderson, incoming president of the American Bar Association, says, "An attack on activist judges is an attack on our Constitution. It is an attack on our tripartite system of government." Similarly, former ABA President N. Lee Cooper recently charged that critics of the judiciary are "taking a page out of the George Wallace playbook." Cooper also compared politicians who criticize activist courts to Communist Party officials in Ukraine who practiced "telephone justice"-i.e., the party officials demanded that judges phone them to find out what verdict should be handed down.

In short, the campaign to delegitimize criticism of activist judges has begun.

We are in a "crisis," according to the ABA, that threatens the independence of the judiciary. The commission the ABA convened to look into this question has found that the crisis began during the 1996 presidential campaign, when President Clinton and Senator Dole both called for Judge Harold Baer's impeachment or resignation. Judge Baer, it will be recalled, suppressed evidence in cases related to drug peddling and possession on the grounds that it was "reasonable" for people to flee from the police in certain areas of New York City. Another threat, according to the commission's report, is "intensified congressional inquiry into the judiciary's governance." Some members of Congress have even proposed a constitutional amendment to limit the terms of federal judges.

What really worries the ABA is not that unlikely prospect but simply "increasingly strident political criticism of particular judicial decisions . . . including allegations of 'judicial activism.'" The ABA is urging its state and local chapters to establish "organized public-information programs" to respond to attacks on judges. It has even given them a sort of how-to guide.

The ABA's approach to this issue provides a taste of the public debate we can expect on judicial matters in general. For one thing, the "pro-judge" side won't support every judge and every decision. The ABA sometimes remembers to note that it wants merely to target "unfair" or "unwarranted" criticism. It's a safe bet that the New York Times's calling Justice Clarence Thomas "the youngest, but cruelest Justice"-or Judge Leon Higginbotham's saying that Thomas "was afflicted with racial self-hated"-would fall in the "fair" and "warranted" category.

Second, the campaign won't be very picky about what evidence it uses to show that a crisis exists. At a panel discussion held at the ABA's annual meeting on August 1, self-importantly entitled "Speaking Out for Justice," three film clips were shown to illustrate the threat to judicial independence. Two of them were just political ads used by conservatives during an Alabama judicial election (by the way, the ABA's own guidelines for "public-information programs" state that the organized bar should not intervene by defending judges in election campaigns). The third clip was a Today show interview with Charlton Heston in which he pointed out, accurately, that a federal judge's release of thousands of felons from Philadelphia's jails had led to 79 murders, 90 rapes, 701 burglaries, 959 robberies, 1,113 assaults, and 2,748 thefts in just eighteen months.

The only other evidence adduced by the ABA was a one-page overhead projection that showed a few headlines from newspapers and magazines. Two of these menacing headlines were from articles in series that have run for years in various legal newspapers, such as "America's Worst Judges." So far, these have not posed much of a threat to the separation of powers.

One bar-association president has taken an interesting approach to deciding when to respond to a criticism of a judge: he asks the offended judge. Donald Bivens, current president of the Arizona State Bar, told the ABA meeting that he encourages judges to call him when they feel they have been unfairly attacked. Upon receiving such a call, Bivens asks the judge whether he would assist in preparing a response. If the judge is willing, Bivens said, that convinces him that the criticism merits a reply from the bar. He is generally able to get one out "within 24 hours."

Which brings us to a third characteristic of the organized bar's campaign to defend the judicial status quo: its incestuousness. Closed-door collaborations between lawyers and judges are only one of the problems. Michael Cardozo, former president of New York City's bar association, bragged about getting advance notice from courts about when especially controversial decisions would be handed down-thus letting him prepare to respond immediately to any press inquiries.

So lawyers get to do personal favors for judges before whom they might appear. And judges get to be defended from criticism. Everyone's interests are served, except those of impartial justice. Part of being a judge at any level is making hard decisions and taking the heat. Indeed, the life tenure and compensation protections of federal judges are intended precisely to insulate them from predictable pressures.