Lawyers' Committee for Civil Rights Under Law

Examples of Political Threats to Judicial Independence

Senator Dole's "Hall of Shame" and Judge Harold Baer -Judicial Independence Falls Victim
In 1996, while running for President, Senator Bob Dole introduced the Hall of Shame, where he named six Clinton judicial appointees that he considered to be intent on dismantling the rule of law and went on to suggest that they were among "the root causes of the crime explosion" Senator Dole went so far as to call for the impeachment of U.S. District Court Harold Baer after he made a controversial decision. Dole's attacks were so vociferous and their facts taken so out of context that others joined in and attacked the judge himself, his decision and called for his impeachment as well. Many claimed that the judge was only upholding the criminal's rights and was pro-crime. The Government asked for the case to be reconsidered and the judge upon reconsideration reversed his initial decision. This was a devastating blow for judicial independence if not only because of the perception that the judge caved into political pressure then also because it illustrated that judges are not free to render decisions that they feel are appropriate without fearing for their jobs -- undermining entirely the Constitutional purpose of an independent judiciary.

Representative Delay's Calls for Impeachment of Sitting Judges
Representative Delay has been one of the most vocal proponents of judicial impeachment, calling for the impeachment of any judge who he feels issues decisions considered to be out of the mainstream. For Delay that would include judges who "created a right to die; judges [who] prohibited states from declaring English an official language; and judges [who] suspended the right of states to withhold taxpayer funded services to illegal aliens." In fact, Delay called for the impeachment of District Court Judge Thelton Henderson when he issued a decision that temporarily blocked implementation of Proposition 209 in California. Delay did not confront the judges analysis but rather criticized his decision because it addressed affirmative action, a practice that "most Americans find repugnant"

Senate Rejection of Justice Ronnie White
The rejection of Ronnie White marked the first time in twelve years that the Senate voted down a federal judicial nominee. Missouri Senator Ashcroft led a campaign against Judge White by distorting his judicial record and labeling him "pro-criminal" because of his rulings on death penalty cases. Ashcroft is facing a highly contested reelection campaign where one of the driving issues is the death penalty. However, Ashcroft's statements clearly misrepresented and misstated the true facts, giving a distorted and unfair perception of Justice Whitess decisions in death penalty cases. Ashcroft's efforts resulted in a completely partisan rejection of Ronnie White, who at the time was a member of the Missouri's Supreme Court.

Examples of Efforts to Undermine Access to the Courts

Legislation
Congress has explicitly sought to interfere with the power of the judiciary to review certain types of cases.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 expanded the categories of immigration cases with restrictions on judicial review. This Act eliminates review of any immigration judge's decision regarding discretionary relief even where the judge has clearly abused his discretion

The Antiterrorism and Effective Death Penalty Act of 1996 prohibits the federal courts from reviewing habeas corpus petitions based on state law where a citizen claims that he was wrongly convicted in violation of the Constitution, unless the state court decision was deemed unreasonable or in violation of Supreme Court precedent.

The Prison Reform Litigation Act of 1995 which weakens federal court oversight of prison conditions that violate the Constitution. Under its provisions, federal courts are restricted in their power to remedy unconstitutional prison conditions because conditions are placed on the ability of a federal judge to allow consent decrees, limitations are placed on the amount of time a court ordered remedy or consent decree can be in place and it restricts instances where the federal courts can assign Special Masters to oversee the reform efforts.

The Judicial Improvement Act of 1999 (S.248) was introduced in Congress and was designed to strip federal judges of the ability to decide controversial issues. The Act would fundamentally limit the ability of courts to impose remedies for constitutional violations if those remedies required the violating body, such as the city or state to impose or increase taxes in order to enforce the decision. Therefore, preventing remedies that impose significant costs such as when a court is attempting to alter a discriminatory system or policy through court order such as in a school desegregation case. The Act would also require a panel of three judges, rather than a single judge, to determine whether state initiatives or referenda are unconstitutional. The effect of such a requirement would be to lessen the possibility of a law being deemed unconstitutional, reduce access to the courts by groups challenging such state measures and make the review of these measures more difficult. This act would also place a time limit on the effectiveness of court orders preventing unconstitutional laws from taking effect and would allow either litigant in a civil case to have the case transferred to another judge for any reason -- allowing litigants to eliminate certain judges because of their perceptions of judge's leanings or more flagrantly because of their race or gender. (Referred to Subcommittee on Oversight and Courts - 3/24/99)

In the States
This case illustrates the way judges who are elected may be under political pressure to make certain decisions, here the decision not only undermines judicial independence but profoundly effects litigants access to the courts.

At Tulane Law School in New Orleans, Louisiana students at the school's Environmental Law Clinic took on a big corporation called Shintech which wanted to build a polyvinyl chloride plant on the Mississippi River in a town called St. James Parish which was heavily industrialized and 80% African-American. The Clinic represented the towns largely African American population, who had trouble obtaining counsel, and tried to stop the plant because of the pollution it would cause to the area. Business leaders and the states governor were strong supporters of the plan, in fact as one might expect the Governor was offering the corporation tax credits and property tax relief to bring the project to Mississippi. The students at the Clinic received a lot of heat from the business community and elected officials for their representation of the plaintiffs and for raising a legal challenge which made it, if not impossible, generally quite difficult for the corporation to build its plant. In the end, Shintech decided to locate the plant elsewhere and promised a smaller plant that would not increase harmful emissions, but not before business leaders asked the Supreme Court to curtail the clinic's activities. The Mississippi Supreme Court took a look at the rule that allows student clinics to provide legal assistance and substantially narrowed it. In effect, the Court made representation of a groups very difficult, requiring that the group establish that more than 50% of its members were living below poverty levels -- since most groups do not keep and maintain income records of its members this made representation (and in fact, almost any kind of advice or legal counseling) almost impossible. The students appealed the decision and the federal district court dismissed the case and the case is currently pending before the 5th Circuit Court of Appeals.

Note: The Lawyers' Committee wishes to thank the law firm of Shearman & Sterling for their tremendous assistance in researching and identifying these threats to judicial independence.

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