The Politics of Judicial IndependenceMike Rappaport

Jan Crawford Greenburg, whose book Supreme Conflict is really quite excellent, writes:

In a press release last week, Chairman Patrick Leahy called it the first time in modern history a sitting justice would testify beforehis committee on legislative matters. [Justice] Kennedy would be testifying aboutthe continuing challenges to security and independence of the federaljudiciary.

There s no question judicial security is a serious andurgent concern. But I m skeptical about how mere criticism of judgesand their rulings somehow undermines independence, and I suggest it ssomewhat disingenuous to even mention the two concepts in the samephrase or sentence.

Judges write opinions. Judges get criticized. Judges continue writingopinions, some for the rest of their lives (i.e., life tenure). It scalled democracy. I find it quite astonishing that criticism could beconsidered a threat to judicial independence and has been the topic ofrecent speeches and conferences and, now, it seemed, congressionalhearings. Certainly, there have been times in our history when theCourt and its justices have come under greater attack. Impeach EarlWarren billboards are an obvious example, but the best instance inmodern history is the ad hominen attacks on Justice Thomas. Maybesomeone can help me out here, but I just can t remember any speeches oreditorials raising concerns about judicial independence when the NewYork Times was calling him the Youngest, Cruelest Justice and whencountless other commentators were eviscerating him for his views, whichwere grounded in the law. Anyone?