Judges are easy targets. They rule on issues that affect everyone. They are limited by ethical rules in how or even if they can respond to political attacks. So, sure, Newt Gingrich attacks Judge Fred Biery as part of his campaign for president. Mr. Gingrich says he would "do no more than eliminate Judge Biery in San Antonio and the Ninth Circuit." See San Antonio Express News report. That’s all he would do. How comforting.
Mr. Gingrich and others refer to Judge Biery ruling in the Medina Valley High School case. He found that the school was sponsoring prayer at a graduation ceremony. I previously wrote about the attacks on Judge Biery here. Mr. Gingrich refers to Judge Biery as an "anti-religious, dictatorial bigot." Apart from Speaker Gingrich’s grandiose rhetoric, he is flat wrong. Judge Biery’s opinion offered advice, something judges are loath to do, to help the school get through the crisis. He suggested removing language asking the audience to join in the prayer, so as to avoid the constitutional issues. He wrote a paragraph suggesting the school district look at this issue as a "teachable" moment in tolerating different views. In the judge world, he bent over backwards to avoid conflict. Yet, he suffered threats.
There is a reason why we have independent judges under the US Constitution. State judges must seek re-election every few years. Federal judges have a job for life. Every so often, some politician seeks to restrict that independence. President Roosevelt attempted to pack the Supreme Court in the 1930’s. President Tom Jefferson sought to remove President Adams’ judges and install his own. Politicians in Florida are trying even now to limit the terms of the state judges in that state.
But, without an independent federal judiciary, most of the civil rights gains of the 1960’s and 1970’s would not have occurred. Judge John Minor Wisdom in New Orleans had to leave New Orleans to avoid the threats. Without his courage, the schools in New Orleans would not integrated. Without a few brave judges in the South, we would still have separate but so-called equal facilities in stores, schools and government buildings.
I believe Speaker Gingrich does not truly seek to diminish the independence of the federal judiciary. Some of his rhetoric is often "over the top." But, if he were to succeed in removing particular judges due to perceived judicial activism, he would indeed curtail the independence that makes he federal judiciary unique and vital to out form of democracy.