California Bar Journal
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Let the courts do their job
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Martha BarnettPoliticians 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 nation’s 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, they’ve 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.

That’s why our Constitution provides for higher judicial review, and ultimately for legislative changes in the law.

But it’s 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 personal beliefs.

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 public’s long-range view.

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.