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Federal Judges: Crime Machine or Political Football? - OpEd

Federal Judges: Crime Machine or Political Football?

N. Lee Cooper
American Bar Association

In just a few hours, the glory and pride of the Olympics will be over. After the last national anthem is played and the last medal is awarded, Americans will return to one of their other favorite pastimes -- presidential politics. As the Republicans and Democrats prepare to gather for their national conventions, both seem to have invented a new demonstration sport for the next Olympics, "scapejudging."

What is scapejudging? It is the process by which one party goes for the "gold" of votes by citing anecdotes and court decisions out of context to suggest that the other party's judicial appointees are to blame for some particularly heinous social problem. This year both parties seem to be out to prove that the other side's appointees are responsible for crime.

Clearly political consultants, pollsters and pundits have convinced candidates of all political persuasions that federal judges make popular scapegoats. As public concern over violent crime grows, politicians find it easy to respond with calls for the appointment of "tougher" partisan judges.

But the American people know this is a sham. For one thing, more than 95 percent of all criminal cases in the United States are brought in state, not federal, courts. And those criminal cases brought in federal courts result in conviction 95 percent of the time.

The American people want politicians to focus on real problems, not scapejudging. A recent poll conducted for the American Bar Association by Louis Harris & Associates found that Americans are not fooled by political rhetoric, and 84 percent agree that it is wrong for the President or Congress to try to influence judicial decisions. Moreover, a full 83 percent of the American people felt it was inappropriate for the decisions of federal judges to be used in political campaigns.

The danger of scapejudging goes beyond the politics. Attacks on the integrity of the federal judiciary may undermine our democracy. The White House and Congress play an appropriate role in overseeing judicial funding, not judicial findings. In creating an independent judiciary, our Founders did not intend to give either branch a line-item veto over every case moving through the courts.

We must not turn the operations of our justice system over to the same partisan powers who brought us budget gridlock and government closures. It is a very short bridge from gridlock to courtlock -- if politics are injected into the workings of the courts.

The justice system works best when it is free of partisan influence. For example, when our nation was confronted in the 1950s and 60s with the last vestiges of slavery -- embodied in segregation and Jim Crow laws -- the executive and legislative branches seemed paralyzed -- unwilling or unable to act. But a few courageous federal judges in the South stood up to political pressure and personal threats, stood tall, struck down discriminatory law after discriminatory law, and moved the nation forward into a new era of integration.

And recently we have seen the judicial system work in the Whitewater matter where partisanship has failed. After months of hearings and millions of taxpayer dollars spent, the Senate issued two partisan reports that added nothing to the public's understanding about the matter. During this same time the independent counsel and the justice system are moving forward to find those who are guilty of wrongdoing and bring them to justice.

Judicial power, of course, is not absolute. The judicial branch is one of three co-equal branches of our government. There must be a balance between an independent judiciary that is not swayed by the politics of the moment, and the appropriate function of the executive and legislative branches in overseeing the fiscal and functional operations of the judicial branch. There are, understandably, tensions among the branches over these issues. But political oversight of funding is far different than political attacks on a judge's findings.

The ABA has formed a bipartisan Commission on Separation of Powers to examine the questions involved in separating the individual branches, and to create an opportunity for dialogue among the branches about what is appropriate oversight and what is inappropriate intrusion. This group will include former members of Congress, federal judges, and executive branch officials.

The American people aren't fooled by partisan scapejudging, and both parties are wasting time and energy on that pursuit, time and energy that could better be focused on finding real solutions to the real problems that confront America.

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