Panel explores ‘judicial activism’

Federal judges who are stung by the criticism of “judicial activism” in Congress need to realize several things, a panel from both sides of the debate said Tuesday.

Congress is a more partisan place than it used to be. Interest groups have more power than ever before. And the very definition of activism has changed.

An activist judge used to be someone who overturned a legislative decision, District Judge W. Royal Furgeson Jr., of San Antonio, said. These days, it’s “one who disagrees with you.”

Furgeson was part of a panel discussing tension between Congress and the judiciary at the 9th Circuit Judicial Conference, which is meeting in Spokane this week.

The country is sharply divided on certain issues, particularly abortion, said John G. Heyburn II, chief federal district judge of western Kentucky.

“Each side wants to control the issue,” Heyburn said. “We’re going to disappoint 50 percent of the people on controversial issues.”

Two former members of Congress from Washington, Sen. Slade Gorton and Rep. George Nethercutt, suggested judges should not take too seriously the criticism they occasionally get from legislators.

Federal judges are appointed for life, and criticism from Congress doesn’t affect their job, Gorton noted. “If you’re affected by criticism from Congress, you’re in the wrong job,” he said.

Members of the Senate, he added, are “extraordinarily frustrated” dealing with judicial nominees who say during confirmation hearings that they will not answer questions about issues that may come before them “because it would be improper.”

“In politics, things are said to curry favor with voting blocs,” Nethercutt said. “Don’t take too personally things that are said in the heat of political debate.”

The proliferation of special interest groups has resulted in Congress and judges being held more accountable for each group’s key issues, Nethercutt said.

“Each decision that a judge makes … is fodder for political activity and persuasion,” he said.

Some of those groups will be deeply involved in trying to influence the choice of the Supreme Court justice to replace Sandra Day O’Connor, Gorton said several hours before President Bush nominated John G. Roberts Jr., an appeals court judge in Washington, D.C.

They’ll spend millions of dollars trying to influence about 12 senators who can be persuaded to vote yes or no on the nomination in the Senate.

The judiciary isn’t one of a congressman’s many constituent groups, like business owners or labor groups or those involved in a particular issue, Nethercutt said. It might help to open up communication with legislators, and have them spend time in a courtroom.

“We’re not a constituency,” countered Heyburn. “We’re a third branch, we’re a coequal branch, of government.”

But the independent judiciary is dependent on Congress for funding, Nethercutt said. And both branches suffer from a “heightened disrespect” for the nation’s institutions in these polarized times, he added.

“Some interest groups couldn’t care less for the respect that is due the institutions,” he said. “But they are due our respect.”