Adam Ash

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Thursday, March 16, 2006

US Diary: Sandra Day O'Connor warns of dictatorship, and she's talking about the US

1. Sandra Day O'Connor Forecasts Dictatorship
Why didn't the American press chase the story?
By Jack Shafer

The smoke drifting out of your computer over the weekend was not the result of a fried motherboard but the scent of bloggers setting themselves on fire in response to Nina Totenberg's NPR Morning Edition Friday, March 10, dispatch. Totenberg had attended a speech at Georgetown University given the night before by retired Supreme Court Associate Justice Sandra Day O'Connor in which O'Connor invoked the word "dictatorship" to describe the direction the country may be headed if Republicans continue to attack the judiciary.

O'Connor's voice was "dripping with sarcasm," says Totenberg. But the retired justice didn't name Rep. Tom DeLay, R-Texas, or Sen. John Cornyn, R-Texas, as the leading perps, in part because she didn't need to. (See 's transcription of Totenberg's NPR segment.)

Filled with fury, the bloggers wanted to know why the mainstream media—outside Keith Olbermann on MSNBC's Countdown —hadn't mentioned O'Connor's broadside. The only newspaper stories I could find on the topic today were from England's Guardian , with Julian Borger reporting and writer Jonathan Raban filing an opinion piece on it.

The bloggers were right, of course. A retired justice needn't predict the end of democracy to make news. All she has to do is burp. So, why didn't the U.S. press react more strongly to her comments?

Obviously, the media should have. The press has its excuses. It doesn't like to form a pack to chase somebody else's story—until it's damn good and ready. The press is also lazy about breaking news on Friday—and doubly lazy about picking up a radio story. Your average reporter (and average media) has better things to think about on Friday than work. But if you assume that the press gave the O'Connor story a bye because they're part of the Bush's royal court, you're wrong.

To begin with, the Georgetown talk wasn't the first in which O'Connor had chided congressional meddlers, and it won't be the last. Give a gander to her 2003 speech before the Arab Judicial Forum titled " The Importance of Judicial Independence ." Last July, the Washington Post 's Blaine Harden transcribed similar sentiments from the justice at the annual 9 th Circuit Judicial Conference in Spokane, Wash. O'Connor, who had announced her departure from the court, didn't use the "D" word or name any names in Spokane, but she lamented the threat posed to an independent judiciary by "some members of Congress." Ralph Thomas of the Seattle Times quoted her as saying, "in our country today, we're seeing … a desire not to have an independent judiciary."

The O'Connor under-coverage has much to do with a press corps unaccustomed to reporting the views of a former justice. Courtly manners prohibit justices from indulging in political speak while on the bench, and seeing as most justices leave the court in a hearse, there's little in the way of a modern precedent for how a voluble justice still in her intellectual prime should conduct herself, and how the press should cover her. O'Connor seems to be feeling her way to a polite space where she can speak her mind about issues without waxing so political that she embarrasses her former colleagues and the institution. In that sense, O'Connor is a lot like former President Bill Clinton, who, after six years of civilian life, is still groping—almost sorry about the word choice—for a respectful yet meaningful position from which to criticize the current administration.

If Totenberg captured the tenor of O'Connor's Georgetown talk, it may mark her passage from justice to professional ex-justice. In July, she encouraged her fellow judges to "try to make a friend out of the members of Congress. … Try to help them understand the needs of judges. It's much harder to turn a cold shoulder on someone you know." Now it she sounds as if she's abandoned the charm tour and wants to feed intrusive politicians to the angry end of a wood chipper.

2. Retired Supreme Court Justice hits attacks on courts and warns of dictatorship

Supreme Court justices keep many opinions private but Sandra Day O’Connor no longer faces that obligation. Yesterday, the retired justice criticized Republicans who criticized the courts. She said they challenge the independence of judges and the freedoms of all Americans. O’Connor’s speech at Georgetown University was not available for broadcast but NPR’s legal affairs correspondent Nina Totenberg was there.

Nina Totenberg: In an unusually forceful and forthright speech, O’Connor said that attacks on the judiciary by some Republican leaders pose a direct threat to our constitutional freedoms. O’Connor began by conceding that courts do have the power to make presidents or the Congress or governors, as she put it “really, really angry.” But, she continued, if we don’t make them mad some of the time we probably aren’t doing our jobs as judges, and our effectiveness, she said, is premised on the notion that we won’t be subject to retaliation for our judicial acts. The nation’s founders wrote repeatedly, she said, that without an independent judiciary to protect individual rights from the other branches of government those rights and privileges would amount to nothing. But, said O’Connor, as the founding fathers knew statutes and constitutions don’t protect judicial independence, people do.

And then she took aim at former House GOP leader Tom DeLay. She didn’t name him, but she quoted his attacks on the courts at a meeting of the conservative Christian group Justice Sunday last year when DeLay took out after the courts for rulings on abortions, prayer and the Terri Schiavo case. This, said O’Connor, was after the federal courts had applied Congress’ onetime only statute about Schiavo as it was written. Not, said O’Connor, as the congressman might have wished it were written. This response to this flagrant display of judicial restraint, said O’Connor, her voice dripping with sarcasm, was that the congressman blasted the courts.

It gets worse, she said, noting that death threats against judges are increasing. It doesn’t help, she said, when a high-profile senator suggests there may be a connection between violence against judges and decisions that the senator disagrees with. She didn’t name him, but it was Texas senator John Cornyn who made that statement, after a Georgia judge was murdered in the courtroom and the family of a federal judge in Illinois murdered in the judge’s home. O’Connor observed that there have been a lot of suggestions lately for so-called judicial reforms, recommendations for the massive impeachment of judges, stripping the courts of jurisdiction and cutting judicial budgets to punish offending judges. Any of these might be debatable, she said, as long as they are not retaliation for decisions that political leaders disagree with.

I, said O’Connor, am against judicial reforms driven by nakedly partisan reasoning. Pointing to the experiences of developing countries and former communist countries where interference with an independent judiciary has allowed dictatorship to flourish, O’Connor said we must be ever-vigilant against those who would strongarm the judiciary into adopting their preferred policies. It takes a lot of degeneration before a country falls into dictatorship, she said, but we should avoid these ends by avoiding these beginnings.

(Nina Totenberg, NPR News, Washington.)


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