Are Judges Under Attack From Politicians?

This is a partial transcript of "The Big Story With John Gibson," January 3, 2005, that has been edited for clarity.

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JUDGE ANDREW NAPOLITANO, HOST: Judges aren't supposed to worry about politics or public opinion. They are supposed to uphold the law. Chief Justice William Rehnquist (search) says judges need more protection from politicians who disagree with them. Is he right? I'm joined now from Washington D.C. by my friend and colleague George Washington University law professor Jonathan Turley.

Jonathan, welcome here and happy New Year to you.

PROF JONATHAN TURLEY, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL: Good to see you, Judge.

NAPOLITANO: So, the chief justice says judges should not have to worry about public opinion and they should do their job, whether their job is popular or not. Is there anything new about that?

TURLEY: No, it's not new in that that is the argument in favor of lifetime tenure. The framers wanted to create a branch that had one salient difference from the other branches. And that is the ability to operate without the threat of repercussions, whether to their salary or to their job. And so all the federal judges were given life tenure. Many state judges are elected, as you know, but federal judges are given lifetime tenure.

NAPOLITANO: All right. When a member of Congress accuses a judge of political activism, what do they mean by that? Isn't one person's political activist another person's hero?

TURLEY: No, I think that it's very true. You know, the accusation of judicial activism is premised on the idea that you know for certain what the correct answer of a case is. I think that there was a great deal of judicial activism in the 1960s and 1970s. Judges who were taking over control over executive branches, over agencies, making them do certain things, that seemed to be political judgments — simply because the judges disagreed with it.

I think that has lessened with time. I think that the judges have decreased. It doesn't mean we don't have judicial activism. But many people on the left have accused Chief Justice Rehnquist of being an activist. And many on the right to the other spectrum of the same time of faults.

NAPOLITANO: Last week, Congressman Tom DeLay suggested that certain federal judges — I don't believe he named names — should be the target of impeachment inquiries because of his view that they have been activist. Do these federal judges really need to worry about being impeached because of their decisions from the bench, John?

TURLEY: I don't think they do. And quite frankly, I think that's some pretty reckless talk. The examples I've seen of, quote, "impeachable offenses," fall significantly short of the Constitutional standard. And there are, I think, people in Congress that understand that courts are not perfect and this is what chief justice Rehnquist said in his report to Congress. No one is saying that judges are without fault or without blame. But we get huge benefits from a system that protects those judges as a group. And says that we will live with their decisions.

I mean, when you think about it, it is an extraordinary aspect of our system that these nine jurists on the Supreme Court have stood up to the most powerful individuals in the world and for the most part — virtually in the entirety — the presidents have yielded. We've never had a president that refused it. This is an extraordinary accomplishment and there's many members that don't want to tinker with it and do not want to change it — that would threaten that.

NAPOLITANO: You and I have studied the work of the court professionally for many years and I think you'll probably agree with me that there are two ways that people look at the court. Some say the court should be a reflection of our wishes and our values and what the majority wants. And others say the courts should uphold rights, whether those rights are popular and should interpret the Constitution, whether the majority wants it or not. Do you agree?

TURLEY: Oh, I think that's absolutely true. People are often very frustrated that the courts seem to go against the will of the majority. But that's how they are designed. They're designed for bad weather, not good weather. That life tenure is there to allow them to go off road, to go against the popular demand. And when they do it, they're grossly unpopular. During the desegregation period, as you know, there were billboards to impeach the chief justice, impeach the people that called for desegregation. But they weathered that storm.

NAPOLITANO: Just to set the record straight, the Constitution provides that federal judges can't be impeached unless they have been convicted of an indictable offense first, right?

TURLEY: Well they can only serve during periods of good behavior.

NAPOLITANO: And basically that's what that means. It means non- criminal behavior. It doesn't mean behavior that's popular with the majority.

TURLEY: That's right. In fact a federal judge to do his or her job often has to be terribly unpopular. Remember these are the people that have to give meaning to things like the First Amendment to protect speech. You don't need the First Amendment to protect popular speech. Everyone wants to hear popular speech. It's when you're saying something unpopular. And these are the men and women that have to say let this person speak.

NAPOLITANO: Jonathan Turley, constitutional professor extraordinaire. John, I sent you a copy of my book.

TURLEY: I loved your book.

NAPOLITANO: "Constitutional Chaos: What happens when the government breaks its own laws." Thank you very much, John.

TURLEY: Thank you.

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