Judging the judges

The experience, she says, only hardened her belief that judges shouldn't be swayed by public opinion. "It's a slippery slope that you can't put the brakes on," says White, who now teaches law at the University of Tennessee, Knoxville. "Whose opinion do you consider? Only the majority's?" The ultimate danger, she says, is the public may come to believe judges can be pressured out of unpopular votes.

In fact, research suggests elected judges do sometimes tend to align themselves with public opinion. Appellate judges are less likely to stop executions or overturn convictions in states where they will later face voters who favor the death penalty, says Charles Franklin, a political scientist at the University of Wisconsin, Madison.

"If they're elected, they're closer to public opinion and more influenced by it," he says.

Chief Justice Sheppard says individual decisions shouldn't be influenced by popular preferences, but judges should be aware of where the public stands. "The judiciary is a special place where decisions are made in a special way," says Justice Sheppard. "But we are all part of the same democracy, so I don't think for judges to pay attention to what goes on in the world around them is altogether improper."

Pressure on state judges to stake out positions may only grow following a US Supreme Court ruling last month that struck down a Minnesota ethics code barring judicial candidates from announcing their views on disputed legal or political issues.

"It will really put them in the line of fire, where they are going to feel greater pressure to announce their positions and potentially pay the consequences," says Indiana University law professor Charles Geyh.

Despite lifetime tenure, federal judges aren't immune from criticism either. In 1996, New York Federal District Court Judge Harold Baer Jr. came under widespread attack for his opinion excluding 75 pounds of cocaine evidence from an accused drug courier's trial.

New York City police observed men drop two duffel bags in a car trunk before fleeing when they caught sight of the police. In part of the opinion that drew the most criticism, Judge Baer wrote it was not unusual for citizens to run from police in the neighborhood of Washington Heights, where he said police are viewed as "corrupt, abusive, and violent."

President Clinton's press secretary hinted that the president might ask Baer to resign but later retracted the statement. Baer ultimately reversed his ruling after hearing new evidence but says the public outcry didn't influence him at all. Looking back, Baer admits, "It wasn't what I'd call an enjoyable moment."

Still, Baer says federal judges must "do what they they think is right," and let the appeals courts judge decide whether they acted correctly.

In any controversial case, judges say they must make extra efforts to explain their decisions to the public. "Judges have an obligation to explain themselves and never take the position that they're above criticism," says Norma Shapiro, a federal district judge in Pennsylvania.

Even if judges don't directly consider public preferences at all, public opinion can still influence their decisions more indirectly. Dissatisfied voters can elect leaders who select different judges or press for laws more in line with their views. "It's a very orderly process by which public criticism ends up changing the way we think about law," Professor Geyh says.

• E-mail sterns@csps.com

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