2 arms tied: Do courts have the right of self-defense?
By Tom Van Flein, Editor
Before every boxing match the referee reminds the boxers of the rules and starts the match by saying "let's fight a clean fight." Both boxers are generally equal in weight and strength, and both are allowed the full use of their arms.
A fight where one was deprived of the use of one arm would not be fair or equal. If the courts of this country were represented by a boxer in the ring of public opinion, that boxer would be an emaciated boxer, with both arms tied behind his back. The opponent would probably resemble Mike Tyson.
Although the courts are, in theory, a co-equal branch of government, the other two branches are a little more equal when it comes to either attacking the courts or justifying their own institutional positions--and getting access to the media to do so. The courts generally do not have public relations departments, spokespeople, press conferences, press releases or go on campaign tours touting their own accomplishments or criticizing the other two branches. Indeed, the courts are typically silent even when faced with withering criticism and public outrage. Presumably the courts rely on the reasoning of the court decisions to speak for them, notwithstanding the fact that most of the public, press or members in other branches, will be unable to understand the reasoning in many decisions. This is not a criticism of the coherency of some decisions, but a reflection of the fact that many issues are complex and the decisions resolving those issues reflect that complexity.
The problem with this current state of affairs is that the courts, both state and federal, suffer a steady barrage of institutional and public attacks. Without any response or rebuttal from the courts, unfounded allegations or misrepresentations gain credibility and public support and result in an unwarranted lack of confidence and credibility in the court system. Such attacks are so common we probably don't think twice when a candidate accuses Alaska judges of "cuddling" criminals, or when a verdict is publicly derided as outrageous, or when a court is accused of "judicial activism."
As a side note, I have reached the conclusion that "judicial activist" (a term often used but rarely defined) should be defined as any judge or court that does not interpret the constitution in the manner advocated by the person accusing the court of "judicial activism." For the party who prevailed, the court is "wise" and "following a long line of precedent." For the other side, well, the court is engaging in "judicial activism." I can give examples of this, but that is better left for another day.
Beating up on the Ninth Circuit Court of Appeals is in vogue these days. And it is not just talk radio, with its usual cadre of cranks, complainers, whiners and snivelers, who have joined in this parade. Many in Congress, and many state legislators, have jumped on this band wagon, particularly when there are cheap votes to pander by condemning "the removal of God" from the pledge of allegiance and blaming the Ninth Circuit for "judicial activism."
An example of the unfairness of the fight for public legitimacy is the response to the Ninth Circuit decision involving the pledge of allegiance. Within days of the decision, Montana's Congressman, U.S. Representative Denny Rehberg, sponsored legislation "expressing the outrage felt by many in Congress over the Ninth Circuit Court's ruling that bans the pledge of allegiance." The Congressman then gave, according to his press release, an "impassioned speech" stating that "through a gross example of judicial activism, two federal judges stripped these words from the American vocabulary. It's bizarre decisions like this that have given the Ninth Circuit the dubious distinction of being the most overturned court in the nation." Senator Robert Byrd insisted that the Senate do something to throw "back in the face of this stupid judge." Columnist John Nowacki wrote that the "Ninth Circuit is justly known as the most judicially activist court in the nation."
Our own Senator, Lisa Murkowski, recently called the Ninth Circuit "dysfunctional and out-of-touch." She proposes to split this circuit.
I am not concerned about the merits of that particular decision, or any other decision that has brought public or political scorn on the Ninth Circuit. The legal reasoning in those cases stands or falls on its own merit. Perhaps the decision on the pledge of allegiance is flat out wrong. I am sure it would be interesting to review the merits and come to our own conclusions. Nor I am concerned that the Supreme Court reverses a lot of Ninth Circuit decisions. That is its job. It generally does not grant certiorari just to pat a court on the back and say "good job." We also know that, but for one or two votes or changes in the Court's membership, many such reversals would have been affirmances.
My concern is that there has been steady erosion of public confidence in the court system as a whole. No amount of Law Day activities can counter the constant barrage of anti-court sentiment that is published almost daily in newspapers, magazines, and other media, or the constant carping by members of the other branches of government.
Do the courts of this country have a right to defend themselves as institutions, their processes, their judges, and their decisions? Perhaps, but do they have the ability or the willingness? No. A long tradition of judicial silence has been engrafted as part of the judicial code of conduct.
For example, Judicial Canon No. 5 provides that judges "should be able to take part in the public debate over proposals to change the legal system or the administration of justice" but because "many speeches are given in forums sponsored by political organizations, a question arises concerning the relationship between, on the one hand, a judge's right to speak publicly on issues concerning the legal system and the administration of justice, and, on the other hand, the prohibition contained in Section 5A(1)(d), that a judge shall not attend the gathering of a political organization. Despite a judge's freedom to speak on legal issues, a judge shall not do so on behalf of a political organization or at a political gathering."
So, with communications to political organizations and political gatherings forbidden, the best forum for explaining the court's process are off limits. Of course, when the courts are under scrutiny by political organizations in political gatherings, the court, being bound by its own self imposed restrictions, will send its representative (if it has one) to a quilting club to discuss budget issues and generalities about fairness and impartiality. The debate of ideas easily becomes a route when the institution under attack doesn't attend its own debate.
So, is there a solution? Not until the courts are willing to hire their own public relations department that releases information in response to specific attacks, or sends a representative to engage in public debate will the courts be able to defend themselves.
Not until the judicial canons are revised to allow the courts, and their judges, even the right to speak up, will there be a self defense. Until then, the courts will rely, by default, on a few law professors who are on the media circuit. Until then, the courts will continue to have both arms tied, and when forced into the ring of public opinion and discourse, the courts will continue to lose to the Mike Tysons they face.