Politicians and the news media in the United States should take a
lesson from the American people. While the public waited patiently last month for the
nations courts to do their work in ruling on various disputes about the 2000
election, political leaders and pundits alike busily checked the backgrounds of the judges
involved. Who was appointed by which governor or which president of what political party?
Who was passed over by what politician in a quest for a seat on a higher court? What were
the politics of this judge or that judge before they ascended to the bench? How might
those politics tilt the judges rulings in this case?
The commentary escalated dramatically as the days wore on. Our courts
were described as kangaroo,
lawless, renegade, and runaway with unparalleled
judicial chutzpah. Even more egregious, critics assailed judges as a bunch
of political hacks replacing the rule of law with sheer politics. The
highest court in the land was characterized as unmistakably partisan, acting
without any foundation of law.
As the politicians and pundits marched down this path, they seemed to
lose sight of what the judges and our courts were trying to do unravel complex
legal issues and determine what laws apply to what facts. In any circumstance, it was a
daunting task, but it was especially so in these particular circumstances.
Happily, the American public was able to view on television or hear
on radio most of the proceedings. We saw the judges all of them conduct
themselves in a seemly and judicious manner.
They asked questions to ascertain the most important and relevant
facts, and listened to lawyers on all sides express how they believe the law applies to
each of their arguments.
This, after all, is what judges are supposed to do. In my opinion,
theyve done it very well.
The increasingly heated references to partisan affiliations of
sitting judges cloak assumptions that politics will somehow trump the law. Those
assumptions are dangerous to our democracy.
The rhetoric is having a predictable effect. It is diminishing the
faith of the public in our justice system.
One recently reported public opinion survey showed 53 percent of the
public believed the U.S. Supreme Court was motivated by politics, while only 34 percent
presumed it was acting on legal principle.
We rely on our institutions of government. The American people,
however, understand the concept of separation of powers and the natural tension that
exists between the three branches of government.
We like the checks and balances inherent in our system.
The American people have always relied on their courts, not blindly,
but realistically. We recognize our judges are human and may make mistakes interpreting or
applying the law.
Thats why our Constitution provides for higher judicial review,
and ultimately for legislative changes in the law.
But its important to recognize that in the more than 200-year
history of the United States, judicial error has been a notable exception, not the rule.
We trust our judges to conduct themselves honorably, to apply the law
impartially and even-handedly, and to base their decisions on the law and not on their own
Even though we recognize that judges often come to the bench with a
political past, we expect and demand that they set their politics aside and rule based
only on the law.
The judges of this country state and federal have
accrued an impressive record of living up to this expectation.
Consistently, public opinion surveys tell us that the American people
believe that in spite of all its problems, the American justice system is still the
best in the world. Our leaders should take their signals from the publics
They should watch and patiently wait for the courts to do what the
public expects their job. They should stop the rhetoric.
Martha Barnett is president
of the American Bar Association.