Enfeebling the judiciary

By Dennis Herrera
[Originally published in the San Francisco Chronicle, Thursday, January 25, 2007]

When U.S. Attorney General Alberto Gonzales stunned the Senate Judiciary Committee by asserting that the right of habeas corpus — which enables individuals to challenge the legality of their imprisonment — is not constitutionally protected, it marked a chilling new assertion of executive power over the judiciary. But it was no aberration.

Indeed, following on the heels of a speech a day earlier in which Gonzales sharply criticized “activist judges” with the audacity to consider legal issues involving national security, his words are consistent in revealing an objective that has less to do with protecting Americans from terrorist-coddling jurists than with cowing the judiciary into abrogating its role as a co-equal branch of government — and thereby weakening restraints on presidential and congressional authority.

By now, of course, most of us recognize the national security imperative as one of the more reliable standards from White House aide Karl Rove’s dog-eared playbook. But long before the terrorist attacks of Sept. 11, 2001, political efforts to demonize the judiciary for its proper function as the guardian of constitutional liberties were under way. Indeed, “activist judges” have been a bugaboo for social conservatives for decades, and were commonly cited by George W. Bush in his 2000 presidential campaign.

Unfortunately, the political effort to de-legitimize judicial independence isn’t limited to verbal attacks from the bully pulpit, which judges necessarily lack. The Bush administration and its congressional allies have also demonstrated a propensity to stiff-arm the courts in crafting public policy.

The issue of reproductive rights is a telling example. In 2000, the U.S. Supreme Court decided the case of Stenberg vs. Carhart by invalidating a Nebraska state law that banned so-called “partial-birth abortions,” in part because it unconstitutionally lacked an exception allowing physicians to perform the procedure if a woman’s health required it. Though the law was thereby settled — unless an amendment were made to the U.S. Constitution — the next Congress sought to re-visit the issue by statute, introducing the “Partial Birth Abortion Ban Act of 2003.”

In an act of stunning congressional defiance, the bill’s sponsors made no pretense of the fact that their intent was not to comply with the high court’s constitutional ruling, but to overrule it.

“I hope the justices read this record because I am talking to you,” scolded Sen. Rick Santorum, R-Pa., the bill’s lead sponsor in the U.S. Senate. “Take the obligation you have seriously because I can tell you, the members of this body do … Listen. Learn. Decide justly.”

Since becoming law, the act has been found unconstitutional in federal courts in three jurisdictions — including San Francisco, where my office intervened in the case alongside Planned Parenthood. The matter is now again before the high court, and what is at stake in the decision due this summer is far more than the future of reproductive rights in America.

Our nation’s highest court has never allowed Congress to overturn a constitutional precedent by any means other than a constitutional amendment. Should it do so now, it would self-inflict a devastating blow to judicial independence. Politicians in the legislative and executive branches — Republicans and Democrats alike — will be on notice that judicial rulings may be ignored or overruled.

Our nation is at a point in its history in which the tension between increasingly complex national security obligations and the need to protect civil liberties is particularly strong. It is times like these when each branch of government must fulfill its constitutional duties with firm conviction.

“There is no liberty, if the power of judging be not separated from the legislative, and executive powers,” wrote Alexander Hamilton, quoting Montesquieu, in The Federalist No. 78.

Now more than ever, Americans need to see attacks on “activist judges” for what they are: a bully tactic intended to enfeeble a coordinate branch of government. A vibrant, independent judiciary must fulfill its obligation in enforcing a Constitution that protects us all.

Dennis Herrera is the city attorney of San Francisco.