Judicial independence.

• Author: Poritz, Deborah T.

18 YEARS ago, in March 1997, I gave the Joseph Weintraub Lecture at Rutgers Newark Law School. I named the lecture, "Independence and Integrity: The Soul of the Judiciary", because I intended to build on the themes Chief Justice Robert Wilentz had raised fifteen years earlier, when he delivered the first Weintraub lecture in 1982. I thought to continue "the dialogue begun by" my predecessor and remarked:

Indeed, today [1997] this dialogue is taking place throughout our nation. The [ABA] has created a Commission on the Separation of Powers and Judicial Independence, which [recently] held hearings in Washington. Chief Justice Rehnquist and Associate Justice Breyer have spoken [about] judicial independence [and] symposia have been held on the subject. At the ABA Commission's first public hearing, the Chair noted the "extraordinary amount of literature [received], both at the federal and [at] the state level on judicial independence." You may remember that the year before -- in 1996-- there had been widespread public criticism of federal district Judge Baer here in New York because, in United States v. Bayless, he had held certain drug evidence inadmissible under the Fourth Amendment. Certainly, public discussion centered on the reasoning in a judge's opinion contributes to the civic discourse; indeed, the right to criticize government action, including the decisions of judges, is fundamental to our political system. Vigorous debate is part of the texture of democracy, whether found in law journals, exchanges between politicians, or in television programming for mass audiences.

In the Bayless case, however, our most prominent public officials mounted damaging ad hominem attacks against the judge, framed in political rhetoric, not reason. Some examples make the point: the White House said that President Clinton would consider asking the judge to resign if he did not reconsider his decision at a rehearing; Speaker Gingrich denounced the ruling as "the perfect reason why we are losing our civilization" and asked for the judge's resignation; and Senator Dole called for Judge Baer's impeachment. In the end, Judge Baer vacated his earlier ruling, not because of bias, but because a new judge would forestall the raising of additional extraneous issues and any consequent delay. We are left, at best, with an uneasy sense of interference with a decision issued by an independent and separate branch of government.

In New Jersey, when I was Chief Justice, threats of violence against one of our family court judges necessitated a state police guard twenty-four hours a day and judge's names--and their family member's names--were published on the internet by fathers' rights groups unhappy with support orders and alimony decisions. I wrote the opinion when the New Jersey Supreme Court held that the Boy Scouts, under New Jersey's Law Against Discrimination, could not remove a Troop Leader who had publicly announced he was homosexual. When the opinion was released, I received telephone threats and hate mail. The local Princeton police were put on watch at my home, and my neighbors wondered why patrol cars were on our street every day. When I concurred and dissented in the first gay marriage case to come to our court, a Resolution adopting Articles of Impeachment against me...