Judges fret over ‘attack’ on independent bench

Robert Marquand

Friday, April 5, 1996 | 11:59 a.m.

AMERICA'S federal judiciary is circling the wagons in the face of unprecedented political attacks - including calls for the removal or impeachment of a New York federal trial judge for making an unpopular decision.

In an election year long on "get tough on crime" sentiments, including GOP presidential candidate Patrick Buchanan's support of term limits on judges, court decisions that appear to be soft on crime are under increasing attack by conservatives.

"It is a highly charged time," says David Sellars, spokesman for the Judicial Conference Secretariat in Washington, the association of federal judges. "As the only apolitical branch of government, judges are easy victims of political crossfire."

Clinton judicial appointees and nominees in Florida, Maryland, and New York are under attack. In his stump speech, GOP presidential contender Bob Dole, for example, derides the White House for appointing "liberal judges."

In turn, the administration has hinted that judges' rulings, and even their jobs, may be subject to politics - a stance that has caused the normally reserved judiciary to rally in the past week.

Judges say the health of an independent federal judiciary, whose members are appointed for life, is at stake - including judges' ability to rule free from pressure.

The Baer case in New York has left the American judiciary shaken. US trial judge Harold Baer Jr. had been singled out by Senator Dole and later by President Clinton for a ruling that excluded as evidence 80 pounds of cocaine seized by police in New York's Washington Heights district. This week, Judge Baer startled the legal community by reversing that ruling after hearing new evidence.

The reversal, taking place in a national spotlight, embarrassed some in the judiciary because it could be viewed as a "cave in" caused by threats from 150 House Republicans, Dole, and Mr. Clinton about Baer's job. Privately, many scholars and judges say Baer's original illegal search-and-seizure ruling, which emphasized police negligence, was a mistake - though they say the reversal is brave.

But it is the threat of job loss that bothers judges and legal experts. In a highly unusual move, four leading federal judges this week authored a protest against the rhetoric of Clinton and Dole. The statement, issued by Chief Judge Jon O. Newman of the Second US Circuit Court, a Nixon appointee, said the "attacks" were "an extraordinary intimidation" and threatened to "weaken the constitutional structure of this Nation."

Baer, who sat on a New York commission two years ago that found systemic problems of police corruption in Washington Heights, first ruled that police behavior in the neighborhood made it normal for locals to flee from officers. Hence, he ruled out "reasonable cause" as a basis for police to search an out-of-state car after men who put duffel bags in the trunk ran away.

Clinton retracted White House statements about removing Baer, and the president said Wednesday he supports judicial independence and lifetime tenure for judges but will criticize opinions if he disagrees with them.

During the civil rights era, liberal judges were hung in effigy in the South. In the past decade, at least two federal judges, both convicted of felonies, have been pressed to step down.

But Baer is the first judge to be threatened with dismissal by high officials over a single ruling, particularly in a disputed area of law like the Fourth Amendment's search-and-seizure provisions.

Such attacks may slowly cause judges to censor themselves when ruling in the "gray areas" of law, shaping decisions on the basis of public sentiment rather than legal principles, some experts worry.

"This ... is not a healthy development at all. It threatens the integrity of the judicial system," says Sheldon Goldman, a federal judicial expert at the University of Massachusetts. "It will act as a warning to other judges that if you rule in favor of criminal defendants, watch out."

Currently, 67 percent of sitting federal judges have been appointed by Republicans. Studies in Judicature magazine last summer showed that the American Bar Association rates the vast majority of Clinton appointees, today about 18 percent of the federal judiciary, as "moderate."