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April 06, 2005

Justice O'Connor on the independence of the judiciary

Last night, I attended Streetlaw's first annual awards dinner. As chair of the awards committee, I had the honor of presenting the Teacher of the Year award to Fred Cole from Marquette, Michigan, a fine social studies instructor who brings the Constitution alive in his classes.

Streetlaw's Chesterfield Smith award went to Justice Sandra Day O'Connor, who gave a speech about the rule of law. She emphasized the importance of civic education (in general) and Streetlaw's programs (in particular) as a foundation for a strong system of impartial justice. Before she took the podium, the American Bar Association President, Robert J. Grey, Jr., had given the evening's keynote address, in which he had explicitly criticized elected officials for trying to put pressure on the judiciary in the Terri Schiavo case. (Grey is quoted in today's New York Times on the same subject.) Justice O'Connor paused in the middle of her written defense of judicial independence to say (I paraphrase her closely): "And thank you, Robert Grey, for your earlier remarks on that subject. It's been a little troublesome lately in that respect."

When Congress passes a bill of attainder, attempting to coerce the judiciary to reach the conclusion it prefers, and then members of Congress explain the killing of judges as a reaction to public frustration with the judiciary, it's obvious what the true "conservative" response should be. Justice O'Connor provided it last night, in her pointed and rather tart defense of judicial independence, separation of powers, and rule of law.

(Senator Cornyn's full speech that caused all the controversy included some coveats and qualifications--and overlooked the Schiavo case completely. But there was an inflammatory passage that he must have expected to be noticed and quoted:

"Finally, I don't know if there is a cause-and-effect connection, but we have seen some recent episodes of courthouse violence in this country--certainly nothing new; we seem to have run through a spate of courthouse violence recently that has been on the news. I wonder whether there may be some connection between the perception in some quarters on some occasions where judges are making political decisions yet are unaccountable to the public, that it builds and builds to the point where some people engage in violence, certainly without any justification, but that is a concern I have that I wanted to share.")

Posted by peterlevine at April 6, 2005 09:49 AM


OT: A Jonathan Schell piece on "civil society" which I hope you may get a chance to address at some point!

Posted by: PW at April 6, 2005 07:31 PM

I appreciate the link to this article, which raises good questions about funding "civil society" as a way to support democracy. There is a real danger when any state funds foreign or domestic NGOs, parties, or newspapers, because one of the virtues of civil society is its (relative) independence from the political authorities.

On the other hand, there are good reasons to support civil society in poor countries and in tyrannies. Not only conservatives but also liberals and leftists have favored this strategy--sometimes agreeing with conservatives about which groups should be funded. If anything, it is conservatives in institutions like the World Bank who only want to fund states; progressives prefer that the money go to NGOs. I would emphasize the influence of George Soros, Michael Edwards, and other progressives in getting governments to support civil society--often with good results. Schell tries to connect the dots (as they say) in order to make Iran-Contra, spurious news shows in the Bush administration, and the Iraq occupation part of the same story: all under the heading of federal money for "civil society." I find that a highly partial and not very helpful framework.

Posted by: Peter Levine at April 10, 2005 09:59 PM

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