Judging the judges

When Judge Alfred Goodwin declared the words, "under God" in the Pledge of Allegiance unconstitutional last month, US senators denounced him as "stupid" and his ruling as "nuts."

Yet all things considered, Judge Goodwin got off pretty easy in the court of public opinion. Politicians and the public at large have proven unforgiving in recent years when judges issue unpopular decisions on hot-button issues involving patriotism, religion, or crime.

Within the past decade, congressmen have threatened to impeach some federal judges, while state supreme court justices who lack life tenure have been booted from the bench on election day based on just a single controversial case.

At some point, such public attacks directed at judges can cross the line between healthy criticism and intimidation, legal experts say. The result can be strong pressure to avoid rulings outside the mainstream, particularly for judges who face judgment themselves at the ballot box.

"Without question, there's an impact," says Lawrence Baum, a political scientist at Ohio State University. "They don't want to cast a vote that makes them electorally vulnerable."

America has a long history of bitterly denouncing court decisions and calling judges names. The Supreme Court justices who ruled that fugitive slave Dred Scott wasn't a citizen, for example, were condemned by abolitionists as criminals. And after federal Judge W. Arthur Garrity Jr. ordered the busing of students to desegregate Boston's public schools in the 1970s, angry picketers show up at his house.

A judge criticized by some as an activist meddler may be others' vision of bravery. That's just part of their unenviable task: unlike legislators, they don't necessarily pick what issues land in front of them. They can't use focus groups or polls to guide them. And inevitably, half the participants go home disappointed.

When it's time to decide a case, judges are supposed to ignore all outside influences and simply apply the law to the facts of the case before them. "In the end, it's the judge's job to think it through and say it clearly as he can," says Randall Sheppard, chief justice of the Indiana Supreme Court. "If you do that well, 99 percent of the time, people are willing to accept what you've done as a good faith call."

In reality, though, judges aren't immune from public criticism. "It's a tough situation," says former Tennessee Supreme Court Justice Penny White. "Nobody wants to be put in a position of being called names."

Ms. White was voted off Tennessee's highest court in 1996 after opponents accused her of coddling criminals and opposing the death penalty. At issue was a majority opinion she signed that reversed a murderer's death sentence and sent the case back to a lower court for a resentencing. "I was painted as a person who cares only about the criminal defendant and didn't place any value on the rule of law or victims," she says.

At the time the opinion was written, White says she and her fellow justices had no idea their decision would be so controversial. Once the criticism started, she felt helpless to fight back, given rules of judicial conduct that limit judges' ability to comment on pending cases.

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