Angry at Rulings, Some Judge the Judges

May 1, 2005 — -- When Terri Schiavo died, House Majority Leader Tom DeLay, R-Texas, issued a forceful warning to certain judges.

"We will look," he said, "at an arrogant, out-of-control, unaccountable judiciary that thumbed their nose at Congress and the president."

From the most powerful leaders in Congress, including DeLay, to television ads run by conservative groups and their well-organized allies, judges are under withering attack in a new and escalating front in the culture wars.

"There's a level of invective and venom that's unprecedented historically," said Jeffrey Rosen of the George Washington University Law School. "There have been plenty of times when Congress has threatened the judiciary with impeachment, with bills to overturn its decisions. But the hatred and the desire to get a new judge if you don't like the results of the old judge seems to be new in some way."

One of the most recent symbols of this outrage is the Schiavo case. The refusal in late March of judges -- liberal and conservative -- to bend to the will of Congress prompted DeLay to issue this blunt threat.

"We're going to start hearings on the definition of good behavior that's in the Constitution, as it comes to impeaching judges," DeLay said.

DeLay's conservative allies are willing partners in an ongoing campaign to impeach, recall or otherwise pressure judges with whom they disagree.

"They don't want to take direction," said David Barton of Wallbuilders, a group that seeks to draw attention to the religious roots of U.S. government. "As we've seen in recent weeks, they don't even want to take criticism.

When asked if judges should be independent, Barton added, " 'Independent' is an interesting thing, because if independent means unaccountable, that's wrong. We have no unaccountable branch."

The judiciary, according to the Constitution, represents an equal branch of government that by design is supposed to interpret the law, not bend the politics or passions of the moment.

"I completely agree that as a coordinate branch of government the judiciary is appropriately subject to criticism," said Kenneth Starr, a former judge who is dean of the Pepperdine University Law School, and was the independent counsel on the Whitewater investigation of the Clintons.

"But where we do, in fact, step over the line, in my judgment, is when we say, or our political leaders say, that we so fervently disagree that we think that impeachment is appropriate or necessary, when those judges are -- whether right or wrong -- exercising their independent judgment, under article three of the Constitution."

Over the years, only seven judges have actually been impeached in the House and convicted in the Senate. Most were for criminal misconduct.

But across the country, activists are attempting to oust judges who have issued rulings they believe are incorrect.