America must uphold judicial
independence at home, too
By Brad Warthen
Editorial Page Editor
WHAT DO Viktor Yushchenko, Saddam Hussein, Clement Haynsworth and Samuel Alito all have in common?
Judicial independence.
That is to say, all have been at the center of events that illustrate the importance of that critical
element, which anchors our republic in the rule of law.
This is what was on South Carolina Chief Justice Jean Toal’s mind when she spoke to the Columbia Rotary on Monday.
She started off with last year’s Ukrainian election, which ultimately led to Mr. Yushchenko’s election as president — but not until the bully boys behind Viktor Yanukovych had tried everything from election fraud to assassination by poison to keep the people’s choice from power.
What saved the day? Well, the “Orange Revolution” in the streets had a lot to do with it, as did international pressure from the United States and others. But ultimately, there would not have been a happy ending for democracy if the Ukrainian supreme court 
had not stepped in — after the central election committee had refused to hear fraud complaints — and ordered a second runoff election, declaring the results of the crooked first one invalid.
“How did the Ukraine Supreme Court have the courage and the tools to conduct this important judicial review?” Chief Justice Toal asked. “Many credit the… strong decision for the rule of law to their training by a team of American judges and lawyers sent on an outreach mission to newly emerging democracies to school their judges in the art of creating and operating an independent court system.”
It is commonly understood that “America is exporting Democracy in the form of free elections” all over the world, to Afghanistan and Iraq certainly, but also less visibly to Bosnia, Saudia Arabia, and so on, she said. But just as importantly, we are “also exporting the idea of the importance of a stable court system.”
Saddam Hussein knows that, and so do his most violent supporters. That’s why Baathists assassinated a judge involved in charging the former (and would-be future) dictator. It’s also why Saddam has done so much to challenge the viability of the court trying him, from theatrics in the courtroom to refusal to show up.
The old order in Iraq knows that an independent judiciary that enjoys broad public confidence is
yet another nail in their coffin.
The chief justice’s remarks remind me of something Sen. Lindsey Graham told me recently. While others measure progress toward success in terms of Iraqi army battalions and police forces trained and effective, he has thought in terms of a functioning cadre of judges who value law over the will of men. That’s one reason he thinks of American disengagement in terms of years rather than the months that political expedience would dictate.
As Ms. Toal put it, America must be “a beacon to the world,” shining a light on “what living by the rule of law can contribute to the liberty of all.”
But for the judiciary to be effective, it must enjoy public acceptance — which is not at all the same as “agreement.”
That’s why she worries about the intersection of politics and judicial selection in Washington.
She tries to stay hopeful, and has seen recent signs that things can go well, even inside the Beltway. She said it will “be interesting to see whether (the nomination of) Alito follows the same positive process” as that of Chief Justice John Roberts.
“One can only pray for the republic that that is the way it proceeds.” Mr. Roberts was eminently qualified, and was treated accordingly. Ms. Toal said she doesn’t know all there is to know about Mr. Alito, but “what I do know suggests that he is in the cream of the cream,” she said in a Thursday interview.
But she worries that Senate Democrats, frustrated that they found no chinks in Mr. Roberts’ armor, are determined to make up for it now. And when politicians make up their minds to do that, the stuff is going to fly.
She’s seen it before — when South Carolinian Clement Haynsworth was nominated by Richard Nixon in 1969 to replace Abe Fortas on the nation’s high court.
She was working in the Haynsworth firm at the time, and her husband was Judge Haynsworth’s clerk. She watched as her fellow Democrats “drummed up” all sorts of bogus accusations at Judge Haynsworth, who was “revered and highly respected” by both sides of the political fence.
But after Republicans had succeeded in blocking Lyndon Johnson’s nomination of Justice Fortas to be chief justice, “Democrats vowed that they would go after the first nominee of Nixon as payback.” So they did, with Ted Kennedy and Birch Bayh leading the charge.
This was long before the verb “to Bork” entered the language. But things have only gotten worse as the years have passed.
“Too often, what we are doing is judging the judges on the basis of the hot-button issues,” said Ms. Toal, when “The real examination ought to be, is he fair and will he call them as he sees them?”
Many will remember that as a politician, Ms. Toal was a Democrat. But she was “an anomaly — a pro-life Democrat.” So she was never one to embrace the litmus tests of Washington.
Being a judge, and one who is particularly devoted to her calling, strengthens her aversion to what she fears the fight over Mr. Alito could become.
But you don’t have to be chief
justice to agree with her. All you have to be is someone who respects the rule of law to understand that you’re not supposed to try to “put someone on there who will sing your song.”
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Krauthammer wrote a recent piece where he proposed that Saddam should be treated like the Nazi monsters were treated, silent behind a glass box, also in shackles and orange prisoner garb. It has been a serious mistake to treat him like a guy showing up for a traffic ticket, who also has been able to threaten the judge and pontificate. I like the idea where we make him look like Hannibal Lector in Silence of the Lambs, hockey mask with evil devilish fire and blood streaks on the helmet. The court there had the chance to go to that look when he refused to come to the court.
As for the US Supreme court, the more that the Dem left attacks a decent nominee like Alito, that type of action serves to marginalize their party further and further. As a conservative I don’t mind that result at all but I worry that we as a people continue to lose respect for elected leaders when we see that kind of personal attack. We, as a relatively young 229 year old democracy, are not insulated from the eventual erosion of our constitution and ideals. Basic trust and belief in the structure of our government is vital to sustaining what we have. It sounds to me like Justice Toal believes that also.
Who says the judiciary needs to be independent of oversight? The Senate has the power to impeach rogue judges, and should do so, most notably in the federal appeals courts, where socialism is imposed upon taxpayers in defiance of the Constitution.
Jean Toal is a good example of someone quite unqualified to be a judge – a lawyer with little experience, moveing from the legislature to the Supreme Court in one swoop. She repays the favor by ignoring the Constitution to rule in support of illegal legislation, always taking the side of the government against the individual.
Lee, have you ever had a conversation with Jean Toal? In my career I’ve known an awful lot of fine judges. I’ve never met one more qualified for the position than she.
And what on earth do your comments have to do with the subject of the column? We have here a lifelong Democrat expressing her concern about what Democrats do or might do to qualified Republican judicial nominees, and you attack her? What is that all about? Just reflex?
Can partisans just not hear it when people from the “other side” are agreeing with them? Or do they just refuse to?
Yes, I have had conversations with Jean Toal and think she is a fine person. I just think some of her legal opinions have been mostly politically-driven, with no legal basis for the conclusions reached. She is not terrible, just typical. American jurisprudence has been in intellectual decay for 50 years, while other areas of society have made progress, leaving the courts unable to handle routine cases of medicine, product liability, and patents.
You are quick to impune the motives of everyone who raises a reasoned criticism, by calling them “partisan”. I am not a Republican. I agree with Jean Toal’s concern about the hateful treatment of Alito and other nominees. You just should have picked a better example of a judge for a solicited quotation on the subject, than an ordinary lawyer who jumped to supreme court justice through political connections.
I didn’t go out looking for somebody to say that. She brought it up.
“her legal opinions have been mostly-politically driven”
in other words, Lee didn’t agree with the judicial ruling.
If her legal opinions had agreed with Lee’s view, her opinions would be “fair and without regard for politics.”
That is the way it works. Just have to ignore it.
David is amazing, able to read my mind about Judge Toal’s opinions, which he apparently has never read, since he mentions none. That is a good example of what Brad calls “reflexive disagreement”.
anyone on this board that half way pays attention knows what you are going to post before you even sign on.
It is quite easy.
…but they are unable to describe what they read our minds. We just have to take their word that they have such astounding powers, that they could discuss the subject of judicial independence and Judge Toal’s opinions, if they wanted to…
Another post that testifies to the laziness that contributes in such great measure to Warthen’s failure as a journalist. He accepts the word of Toal, a Haynsworth acquaintaince and apologist, without doing any research to understand if her analysis is correct or not. Haynsworth’s nomination was rejected because he was a corrupt racist. Toal says that he was rejected because the Democrats were determined to avenge the Republicans’ treatment of Fortas.
However, one piece of evidence that militates strongly against this view was the fact that 17 Republicans voted against Haynsworth’s confirmation. I am at a loss to understand why 17 Republicans would join in what Toal describes as an essentially partisan act of revenge by Democrats.
Perhaps Toal’s perceptions are clouded by the passage of time, or by personal affection for Mr. Haynsworth, or by the fact that for many South Carolinians, still today and even more in 1969, racism and corruption were unobjectionable and unremarkable.
Warthen, as is his wont, fails to do any investigation or exploration to determine whether or not the viewpoint he seeks to promote is supported by facts.
It is noteworthy that Alito, to whom Toal refers as the “cream of the cream” was an active supporter of the Concerned Alumni of Princeton as late as 1985(!) and wrote strongly of the damage that would be caused by letting blacks and women into Princeton without keeping strict controls on their numbers. The fact that Toal considers such views unremarkable suggests that a little more exploration into her viewpoints and motivations would be in order – that is, for someone less lazy than Warthen.
Ms. Toal also fails to explain why we should not be concerned that Alito has, on numerous occasions in recent weeks, defended his expression of particular viewpoints which he apparently regards as objectionable, by claiming that he was simply lying about his viewpoint in order to get a job. It would be useful to have had this brought up to Ms. Toal and to hear her explanation of it, in deciding what weight to give her viewpoint on the matter.
But again, if Ms. Toal is to be questioned on matters like these, it’ll have to be by someone less lazy than Warthen. Warthen is concerned to randomly cast around for people to make statements in support whatever of his viewpoints or idées fixe he happens to be promoting at the moment, and cite the statements as authority.
Depend on “Mary Rosh” to attack Mr. Warthen (or anyone else ) personally for daring to ask a fair hearing on Judge Alito.
Democrats who want to question Mr. Alito include:
* Joe Biden, who admitted to plagarizing articles and speeches,
* Ted Kennedy, who killed his mistress
* Hillary Clinton, who has Jamie Gorelick delay the Whitewater investigation long enough for the statute of limitations to prevent her indictment.
Judge Alito never said he “lied to get a job”. He made the distinction between his personal views on various issues and his professional views of the appeals cases in those issues.
The Supreme Court has evolved into a body with too much arbitrary power. When the founding fathers got around to setting up the USSC, Article III was written with a total of 67 words. John Jay, the first chief justice, served on the USSC while he also functioned as Ambassador to England. The Court was meant to be an arbiter of only disputes between states and major issues like treaty disputes. Congress to this day has oversight responsibility and can reduce the number of justices and lower courts. For these and other reasons I don’t think the court is truly independent and should not be. Bush is appointing strict constructionists who will not attempt to be bench legislators and that is a real plus.
An improvement would be have challenges to the constitutionality of laws at the the federal and state level to be available immediately upon passage, as in England and Canada.
Here, we have to wait for real people to be be wronged by the State and then seek redress, which is usually narrowly interpreted around the particulars of the case, leaving the government loopholes to continue wronging other citizens, until enough lawsuits and appeals render the offending legislation sterile.
Mary should add links to her assertions. Until she does, ignore her.
Don’t feed the trolls.
Yes, I could add links to my assertions, or you just look up what is widely available information.
Once again you prove you have no arguments, and instead simply seek to shut down opinions contrary to yours.
Are you saying that 17 Republican senators DIDN’T vote against confirming Haynsworth? If I make a correct factual assertion, and you make no factual assertion at all (not even one of your endless, rambling, pompous collections of links to various wingnut publiations) who’s the honest person and who’s the troll?
Talking points and lies are “widely available”, but repeating a libel doesn’t make it true, only believed by the lazy and gullible in the audience.
True, repeating a libel doesn’t make it true, but reflexively denying a fact doesn’t make it false. It is a fact, for example, that 17 Republicans voted against Haynsworth’s confirmation, so it is difficult to understand Ms. Toal’s contention that the failure of Haynsworth’s confirmation was a partisan retaliation by Democrats.
Are you denying that 17 Republicans didn’t vote against Haynsworth’s confirmation? What was the real story behind Haynsworth’s confirmation, then? And what is the real story behind Alito and the Concerned Alumni of Princeton?
It is sad that you are too lazy to look up these facts and tell us, and that you think that you can just talk about “libel” as a substitute for argument. Another example of how farm subsidies sap people of their intiative and industry.
No one ever denied that Republicans voted againts Judge Haynesworth. We do challenge your one-line smears of Judge Alito, so your diversion to Haynesworth failed. Would you care to discuss Judge Alito, instead of irrelevent history?
Ummmm, I didn’t bring up Haynsworth. Warthen brought up Haynsworth.
And I ask you again, if I’m “smearing” Alito, tell us the real story of Alito’s connection to the Concerned Alumni of Princeton.
Or do you lack the initiative to do that? Is it easier for you just to sit out by the mailbox waiting for your next farm subsidy check?
I didn’t bring up Haynsworth. Chief Justice Toal brought up Haynsworth.
I passed it on because you don’t often hear anyone take the history of this conflict back not only before Bork, but before Roe.
I continue to believe that the hyperpartisanship of this generation of politicians (and especially of the unelected interest groups), and the struggle over abortion, have made warfare over judicial nominations much more bitter than they were in the days of Fortas and Haynsworth. Still, I thought it interesting for Chief Justice Toal to bring up such a precedent.
Another reason to mention it is that some Republicans love to revile Ms. Toal purely because of her background as a Democrat, and her association with, and defense of, Mr. Haynsworth fly in the face of that. I like to mess with partisan assumptions at every opportunity.
Some journalists love to create the straw man argument that the critics of Judge Toal are partisans, in order to ignore the criticism of her legal writings.
Which journalists are these who reject partisan arguments? Introduce me to some, so I’ll feel less lonesome. Most that I know buy into the two-party system completely. It makes politics simpler to write about: Left/right, up/down, winner/loser. Nothing like a dichotomy for keeping one from having to think too hard.
When somebody says something outrageous, the average journalist reports it, then goes and gets somebody on the “other side” (as though there were really only two) to get that person to say the exact opposite. He reports that, too, and goes home feeling very satisfied that he has been “balanced.” Never mind that neither statement was right or true. The fact that they SAID those things is unassailably true, and our stereotypical journalist is willing to settle for that.
I’m not.
I thought another reader was explaining the rote process of mediocre news, then I saw it was signed by editor Brad Warthen.
So I have to ask: why don’t the editors at The State stop this practice?
“I didn’t bring up Haynsworth. Chief Justice Toal brought up Haynsworth.
I passed it on because you don’t often hear anyone take the history of this conflict back not only before Bork, but before Roe.”
And my complaint wasn’t primarily about your lack of integrity, although that too is evident in your post. My complaint was primarily about your laziness. What Ms. Toal said was, apparently, not true. The failure of Haynsworth’s confirmation was not a result of a partisan move for revenge on the part of Democrats. Haynsworth’s confirmation failed because of serious concerns about his integrity and his attitudes on race. Seventeen Republicans joined 38 Democrats in voting against Haynsworth’s confirmation. Why would 17 Republicans join in a Democratic effort for partisan revenge?
You wanted to pretend that the oppostion to Alito was partisan, so you passed along Toal’s comments on Haynsworth and on Alito without investigating whether they were true. You found something that appeared to support the point you were making, and your laziness combined with your lack of integrity to inhibit you from checking it out.
The opposition to Alito is not reflexive partisan opposition. It is based on serious concerns about his integrity, his racial attitudes, and his view of the law. You seem to take the attitude that the Senate’s job is simply to be a rubber stamp for presidential nominations – a position you did not take when Clinton, who is not a member of the Republican party whose whore you are, was president. Then, you were perfectly content to watch Republians stall and delay confirmation votes for purely partisan reasons, and you never once had anything to say about this, or any other corrupt or partisan acts by Republicans.
Please drop the nonpartisan act. You have been a Republican partisan ever since the Democrats lost you and other racists by pushing through the Civil Rights Act and the Voting Rights Act.
OK, OK, OK. If Mary’s going to keep wasting perfectly good pixels repeating it, I’ll go ahead and respond to that which does not deserve a response.
I will do so thusly:
You call me lazy, but have you even bothered to click on the link I provided, right up top, for Clement Haynsworth? Here it is again, so you don’t have to scroll all the way back up there. You’ll note that both of the points you keep hammering on are contained within this sentence:
I went ahead and provided that link, even though it was irrelevant to the ways that Mr. Haynsworth related to the column, which were as follows: Ms. Toal considered the charges to be bogus, and she didn’t want to see something like that happening with Mr. Alito.
You’ve got to be kidding me. You throw up a link to an online encyclopedia that mentions, but does not really go into, the concerns with Haynsworth’s nomination, and you let that be the end of your analysis of Haynsworth. And you say that indicates that you aren’t lazy?
You cite Toal as an authority, and relay her claim that she believed the charges against Haynsworth were bogus. But that doesn’t end the inquiry, it begins it. How credible is Ms. Toal as an authority? Does she have divine insight? What is the background she brought to her analysis? Has she considered all the information relevant to the inquiry?
Perhaps the most important consideration is this:
*******************************************
When Ms. Toal says that the charges were bogus, does that mean that she believes Haynsworth wasn’t guilty of rulings supporting segregation, and that he wasn’t guilty of conflict of interest?
Or does she believe that he was guilty of those things, but that they’re OK?
*******************************************
That is a vital question that has to be answered before we know what weight to give her opinion. In considering the question, we might take into account one important and undisputed fact about Alito.
That is that Alito was, in the 1970’s, a member of a group that advocated racial and gender discrimination (the Concerned Alumni of Princeton). As late as 1985(!) he boasted in a job application about his involvement in this group.
Now, Ms. Toal evidently has not let Mr. Alito’s association with a racist group alter her opinion that he is “the cream of the cream”. Is that because she doesn’t know about his association with the group? If this is the reason, that fact detracts from the weight we should place on her opinion because she does not know important facts that should be taken into account in forming a judgment.
Does she know about Alito’s association with the group, yet feel that the group’s views and aims were acceptable? If that’s true, that fact detracts from the weight we should place on her opinion, because it shows her to be casually accepting of racism.
If she accept’s Alito’s involvement with the CAP, that should color our view of her opinion with respect to Haynsworth. It tends to indicate that she might have believed that segregationist views were not a reason to deny someone a seat on the Supreme Court.
At any rate, her views on an important matter relating to both cases are unexplored, rendering it impossible for a principled journalist to cite her as an authority without seeking clarification on the matter.
In addition, there is the issue of whether her personal acquaintanceship with Haynesworth colored her views.
And, of course, one point she made is absolutely contradicted by the facts. She presented the failure of Haynsworth’s confirmation as an act of partisan revenge, something that was impossible. Only 38 Democrats voted against Haynsworth’s confirmation. His confirmation would have succeeded except for the votes of 17(!) Republicans.
The fact that Ms. Toal was wrong about an important factual issue also affects the weight we should give to her opinion.
One side issue probably worthy of some note is the fact that Nixon owed his election in 1968 to his naked pandering to southern racists and segregationists. One question that might have been considered is whether Nixon’s nomination of Haynesworth was payback to the segregationists and racists to whom Nixon owed his election.
But you didn’t consider any of this. You wanted to present the dispute over Alito’s nomination as a purely partisan matter, and you wanted to pretend once again that you are nonpartisan instead of the Republican whore that you are. So you found a supposed authority whom you could cite in support of the point you wanted to make, and your laziness and dishonesty combined to prevent your examination of the numerous points that needed to be considered before judging the credibility of the authority you were citing.
History lesson for “Mary Rosh”:
It was the Republicans who pushed through the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Democrats fought it. Al Gore, Sr was one, along with the old hard-line Democrat segregations in the Solid South.
Lee, your dependence on handouts has made you even more shifless and lacking in initiative than I thought. Do you not know that Lyndon Johnson was a Democrat, and caused great resentment among racists and segregationists in the south when he pushed through the Civil Rights Act and the Voting Rights Act? It is true that southern Democrats opposed the bills. For example:
“Republicans favored the bill 138 to 34; Democrats supported it 152-96. It is interesting to note that Democrats from northern states voted overwhelmingly for the bill, 141 to 4, while Democrats from southern states voted overwhelmingly against the bill, 92 to 11.”
A lot of Democrats did fight it, yes. However, you apparently were too lazy or stupid to do the research to learn that a majority of Democrats supported it, although many did not.
It is true that in 1964, southern Democrats opposed the bills. It is also true that a great many of these SAME PEOPLE became Republicans as a result of resentment over the bills.
If oh, let’s say, Strom Thurmond, filibustered against the Civil Rights Act as a Democrat, and then, later a Republican, oh, let’s just take as a random example, Strom Thurmond, becomes known as a notorious and inveterate racist all through the 1960’s, 1970’s, 1980’s and 1990’s and on into the new millenium, you don’t accuse the Democrats of racism in the third millenium because the Democrat Strom Thurmond was a racist. You note the racism of the Republican Strom Thurmond, and the Republican Party that gave Thurmond a home.
Lee, don’t try to give people history lessons if you don’t actually know any history. Why don’t you go to an adult education class at one of the schools I pay extra tax dollars to provide for you and take some remedial courses? I won’t begrudge you the money.
Strom Thurmond appointed more blacks to his staff, to judgeships and federal jobs than did Ted Kennedy.
Another history lesson: Richard Nixon
Nixon was elected because he promised a phased withdrawal from Vietnam, and the Democrats were tainted by the scandals of Lyndon Johnson and the failures of JFK’s Harvard crowd.
Nixon pushed through the Earned Income Tax Credit and many other liberal programs for the poor, as well as Affirmative Action racial quotas.
Go read the biography of Judge Matthew Perry, appointed by Strom Thurmond.
Lee, neither of those two posts have anything at all to do with my point, which is that Nixon was elected by southern voters which he won over by deliberately appealing to their racial hatreds. Again, take advantage of one of the schools I pay extra tax dollars to provide for you and go take some remedial history classes.
Nixon was elected by Southerner throwing off the yoke of Democrat segregationism, and by opponents of the Democrats’ war in Vietnam being mismanaged into a stalemate.
Nixon the liberal was re-elected by the greatest margin in American history.
Lee, so what you’re saying is that Thurmond ran for president in 1948 on a racist, segregationist ticket, and switched to the Republican Party because Lyndon Johnson pushed the Civil Rights Act through, and the reason he switched to the Republican Party was to throw off the yoke of segregation.
I knew that farm subsidies tended to sap people’s initiative and turn them into shiftless, lazy, ignorant freeloaders, but I never knew until now the full extent of the harm they could do.
Strom Thurmond obviously changed his views on race, judging by his appointing more blacks to this staff, as U.S. Marshals, judges, and other positions, than any white Democrats you can name.
Nixon was a liberal, and his election in 1968 has very little connection to the election of 1948, except for being a continuation of Southerners leaving the Democratic Party which had been playing off blacks against whites for the last 100 years.
Lee, yes, Strom Thurmond “obviously” changed his views on race, which is why he freely, publicly and openly acknowledged his African American daughter during his lifetime.
And the reason the South abandoned the Democratic Party right after the passage of the Civil Rights Act and the Voting Rights act was that the South was tired of segregation – even though they fought arduously to maintain segregation, and continue to do so to this day.
Maybe that is the correct way to look at things. Nobody else takes that view, but maybe you are uniquely gifted.
Or, maybe the South abaondoned the Democratic Party when the Democratic Party abandoned racism, which is how everyone views the situation except you. Maybe you aren’t the most brilliant and gifted person who ever lived, capable of having insights that elude mere mortals.
That latter possibility also fits in with the fact that you are a shiftless freeloader who has been forced to depend on federal handouts his whole life.
The Democratic Party has not abandoned racism, but uses race constantly as an issue to divide the voters, into blocs they can control, and to achieve a plurality in elections. The Democratic Party cannot win majorities in many elections.
The party leadership of rich whites displays their racism in their attitudes that non-whites are incapable of achieving self-sufficiency, much less properity.
Now we have the “independent judiciary” reading two words in court decision, and from that weaving a mandate for another earlier grade of kindergarten, at taxpayer expense.
Why stop there? A judge in Kansas found that schools must provide Olympic swimming pools.
Lee, In South Carolna, the legislature cannot impeach judges. The Judiciary is exempt from impeachment by our legislature.