The Breakfast Table

More than Mirrors

Dear Alex,

Thanks for that helpful explanation about the guidelines concerning judges’ speech on legal issues. I’m glad to learn that the code of judicial conduct, far from prohibiting judges’ discussion of legal issues, to the contrary affirmatively encourages it. Unfortunately, though, as you note, the actual effect of the code–coupled with other factors, such as the increasingly strident attacks on judges that some politicians and citizens groups recently have been–means that too many judges are deterred from saying too much.

I am particularly disturbed by the constraints imposed on state court judges who have to run for office, but then are barred from discussing issues that may well be foremost in voters’ minds. Worse yet, their critics in the press and the public are–appropriately–not similarly constrained, so therefore can make charges to which the judges (or judicial candidates) cannot respond. This is one of the reasons why I personally believe that judges should not be subjected to election and recall processes in our state courts, anymore than in our federal courts.

As I noted at the end of my earlier post, the federal judiciary was deliberately designed to be relatively insulated from majoritarian pressures, thanks to the Constitution’s appointment and lifetime-tenure arrangement. And this position, one step removed from partisan politicking and polling, has enhanced the federal courts’ ability to stand up for constitutional rights after they have been trampled by elected officials. We’ve seen this over and over again–from the 1960s Civil Rights movement, to the current battle for cyberliberties.

On the latter front, for example, there is a striking disparity between elected officials and unelected federal judges. The Communications Decency Act sailed through Congress, with overwhelming support on both sides of the aisle (out of 535 members of Congress, only 21 voted against it), and it was enthusiastically supported by the Clinton Administration. Yet of the 15 judges who ruled on its constitutionality–including the entire U.S. Supreme Court, in Reno v. ACLU–every single one agreed with us that it squarely violated the First Amendment. Likewise, the ACLU also has brought constitutional challenges to four state cyber-censorship laws, and we have won every single one of those cases. The total of 19 judges who have unanimously upheld First Amendment rights in cyberspace were appointed by 6 different presidents, from Richard Nixon to Bill Clinton, and represent a broad idelogical spectrum.

(And the fight still goes on–just as I’m writing this, NPR is reporting on pending Congressional legislation that we call “Son of CDA”–and I anticipate that we’ll eventually have to battle against “Daughter of CDA,” “Granddaughter,” etc.!)

In short, just as our elected officials are distressingly eager to censor online expression, regardless of ideology, our non-elected federal judges have shown the opposite tendency. Where would we be–where would online freedom be–without our independent federal courts? Certainly the Starr Report could not have been transmitted over the Internet–not to mention many judicial decisions, including some of the lesbian/gay rights decisions that you and I discussed yesterday. (Alas, virtually any reference to homosexuality could well be considered “indecent” or “patently offensive.”)

This discussion leads directly to your point about politicians’ poll-driven pandering. I share your concerns about lack of leadership and political courage among too many elected officials, especially because civil liberties issues–by definition–are almost never going to win any popularity contest. After all, the Bill of Rights was designed to be a counter-majoritarian document, to preserve certain fundamental rights against the “tyranny of the majority.” Scapegoating civil liberties, especially of politically marginalized groups, is a popular political ploy. Last year I wrote a column precisely on this topic for which I re-read John F. Kennedy’s Profiles in Courage for the first time in 35 years. It really stood the test of time, and I highly recommend it to both you and your sons, if you haven’t read it recently. It contains inspiring portrayals of political figures from throughout U.S. history who exemplified principled leadership–always incurring scorn in the short run, but occasionally earning widespread respect in the long run. Don’t you think that many of our fellow Americans are hungering for office-holders whom they can respect–now more than ever? And can they really respect someone who merely mirrors the latest survey data?

Respectfully yours,