Home » About » Newsletters » August 1996
Judges Must Be Free of Political Pressure
By Executive Director Robyn Blumner
August 1996
When New York federal court judge Harold Baer Jr., a President Clinton appointee, ruled that 80 pounds of cocaine found in a car could not be used as evidence against the driver because it was unlawfully obtained, he found himself thrust into the center of presidential politics. Bob Dole attacked Clinton's judicial appointments as "soft on crime," and made Baer the new poster child for liberal extremism.
Such may make good sport in an election year. But when judges are burned in political effigy for their interpretations of the Constitution, not only is their historical roles as its protector compromised, but so is the independence of the judiciary.
Baer, who sits in Manhattan, ruled that police on patrol in a minority neighborhood at 5 a.m. did not have sufficient cause to search a car after four young black men, who were packing up the trunk with duffel bags, ran as police approached the vehicle. The ruling meant the duffel bags filled with cocaine and the driver's taped confession could not be used as evidence in court.
Baer said that running from the police in Washington Heights, a New York neighborhood where rampant police brutality and corruption had recently been uncovered, was not an unreasonable reaction. The action of fleeing police, therefore, did not give the officers the objective suspicion of lawlessness needed to conduct a warrantless search.
Dole blasted this ruling and Clinton, exhibiting all of the political courage of a sinecure, suggested that he might call for Baer's resignation. Under such intense political pressure, Baer reversed himself, allowing in all the evidence. He later withdrew from the case entirely.
But was Baer really all that off base? I remember many a 5 a.m., stuffing my car full of suitcases and duffel bags just before making the fivehour trek home from collegeoften with the help of my brother and his college friends. Would this behavior give police license to search my belongings? Or do we accept such searches only in poor neighborhoods?
And, if in my community's experience, a typical interaction with police meant someone got hurt or was shaken down, I doubt if we would have stood around if we saw them coming. Just because you choose to avoid a police officer does not mean you are guilty of a crime, nor does it mean you should be subject to search.
But beyond the facts of this case, the political mincemeat made of Baer threatens the independence of the federal judiciary. As Chief Justice William Rehnquist said in a speech at the American University College of Law following the Baer controversy, judicial independence requires "the assurance to federal judges that their judicial actstheir rulings from the bench(will) not be a basis for removal from office."
Judges must be free from political constraints in order to interpret the Bill of Rights as intendedas a document that purposely limits the power of government. Reflected in its design is the deep distrust of state authority the founding fathers felt toward their British occupiers.
Thomas Jefferson saw the judiciary as primarily responsible for protecting citizens from an abusive government. In a 1789 letter to James Madison, Jefferson tried to convince him that a Bill of Rights would not be a mere "parchment barrier" between the citizen and government as Madison feared, but that it would be a valuable addition to the original draft of the Constitution. Jefferson wrote, convincingly as it turned out, that as long as the judiciary remained independent of the legislative and executive branches of government, it would provide a significant check on the power of those branches over individuals. The courts would make sure no individual would be deprived of life, liberty or property without due process of law.
Due process is the collection of rules that forces the government to deal with its citizens fairly and evenhandedly. Unlike so many other countries, our government can't just lock us up and throw away the key. Our system recognizes the inherent value of the individual, suggesting that the power of government is derived from a grant by the people and not vice versa.
It is also true, however, that no system of justice is infallible. Instead, biases are built into criminal justice systems which either lean toward convicting the innocent or acquitting the guilty. Because our system's dual philosophies are distrust of governmental power and the integrity of the individual, it purposely errs on the side of protecting the accused from wrongful conviction. Which means, at times, guilty people are freed when due process is not duly followed by police and prosecutors. Dole would call this important check on state agents, getting off on a "technicality."
The role of judges to ignore feverish public sentiment, and call foul when the government oversteps its authority, is not well understood by the general public and is easily demagogued by politicians. By making federal judges the whipping boy for this nation's crime problems, Dole implies that the function of a judge is to obtain a conviction, instead of ensuring the fairness of the judicial process and objectively interpreting legal issues.
Dole's opportunism is doing more damage to Americans' understanding of the role of judges than 1,000 Baertype decisions. Rather than using attackdog politics, our leaders should be out front explaining subtleties of our system of checks and balances. They could explain why a decision such as Baer's, which may appear on the surface to be unjust, is really a remarkable testament to justice, serving as a reminder that courts serve as our guardian, protecting us from police harassment.
Now that would be the speech of someone with the makings of a president.
