HoustonChronicle.com - Judicious temperament: Retired Supreme Court Justice Sandra Day O'Connor speaks up against political attacks on courts.

HoustonChronicle.com - Judicious temperament: Retired Supreme Court Justice Sandra Day O'Connor speaks up against political attacks on courts.March 16, 2006, 8:33PM

Judicious temperament
Retired Supreme Court Justice Sandra Day O'Connor speaks up against political attacks on courts.
Copyright 2006 Houston Chronicle

ON or off the bench, Supreme Court justices tend to be discreet about the court's relationship to politics. So when a former justice breaks her dignified silence — as Sandra Day O'Connor did in a startling speech last week — the comments carry gravitas. Her words bore even more weight because she cited specific acts by politicians and warningly employed the word "dictatorship."
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O'Connor, who resigned last month, spoke March 9 at Georgetown University. No tapes or transcripts were released, and the lone reporter present was Nina Totenberg of National Public Radio. Totenberg reported that in her speech O'Connor, a Republican, savaged Republican threats to punish the court for its interpretations of the law.

The courts, O'Connor reportedly said, expect at times to make lawmakers and the president angry, but the courts' effectiveness "is premised on the notion that we won't be subject to retaliation for our judicial acts."

O'Connor then singled out by deed, though not by name, two Texas politicians for their verbal attacks upon the court for doing its job. Last year, criticizing federal and state court rulings that allowed Terry Schiavo's vegetative state to end in death, then-House Majority Leader Tom DeLay said, "The time will come for the men responsible for this to answer for their behavior."

In a similar vein, U.S. Sen. John Cornyn, himself a former justice on the Texas Supreme Court, publicly mused that political or ideological decisions by unaccountable judges might be to blame for episodes of courthouse violence. His comments followed the murders of a Georgia judge and the family of a federal judge in Illinois.

These comments were deemed reprehensible at the time. When a former U.S. Supreme Court justice with exquisite political sense cites them as part of a national trend, the public should pay attention.

If additional motivation for public concern were needed, the Associated Press reported Thursday that Supreme Court Justice Ruth Bader Ginsberg, in a speech last month in South Africa, said she and O'Connor had received death threats alluding to Republican criticism of the high court.

O'Connor, a former Arizona state senator, is accustomed to political jostling. But, as she rightly said last week, democracy itself is jeopardized when critiques metastasize into threats over specific rulings. Such judicial bullying, O'Connor pointed out, is how dictators thrive in former Communist and Third World countries. She reportedly added, "It takes a lot of degeneration before a country falls into dictatorship, but we should avoid these ends by avoiding these beginnings."

Lawmakers have a duty to speak out if they perceive wrongdoing. But it's imperative that they avoid threatening the courts with political retaliation, or seeming to justify or excuse violent attacks against judges.

Congress has the power to impeach federal jurists and abolish lower courts or limit their jurisdiction. Legislators' hard-worded threats against jurists cannot be disregarded as empty.

Unchecked by vigilant citizens, "naked partisan reasoning," to use O'Connor's phrase, could disastrously alter the federal courts' equipoise with Congress and the White House.

O'Connor did the country a service by lending her stature to a warning against reckless threats upon the judiciary. As a private citizen with unique credibility, she owes something more. She should make public a transcript of her comments and detail her concerns so more Americans can hear them. The time for discreet silence has passed.