'Unpopular' Judges Face Rising Public Wrath

Illinois Supreme Court justice awaits decision today on impeachment.

On June 16, 1994, Illinois Supreme Court Justice James Heiple caused an uproar with a two-page decision that ordered an adopted toddler known as "Baby Richard" back to his biological father. Nearly three years later, Justice Heiple is precariously close to impeachment.

State lawmakers charge Heiple with a wide range of misconduct - from dodging speeding tickets to manipulating the court's disciplinary system. But legal observers say the Baby Richard decision, criticized as "terrible" and "wrong" by Gov. Jim Edgar, is a powerful unspoken motive for many who seek to remove Heiple.

"You can't ignore the pink elephant in the room," says Ira Pilchen of the American Judicature Society in Chicago. Baby Richard "is on everyone's mind."

Heiple's predicament reflects a growing trend of political and public lobbying to unseat judges who make unpopular decisions. Although experts agree voting out and even impeaching judges is sometimes warranted, they say the recent trend is toward single-issue, TV "sound bite" attacks aimed at intimidating judges and distorting their records.

At risk is the freedom of judges to rule based solely on their interpretation of the Constitution and the law without the threat of public or political retaliation, experts say. Such judicial independence is a core principle of US democracy and is especially important in ensuring that the rights of the minority are protected, they say. "The danger is that judges are going to start ruling on what they believe the public wants to hear," says Mr. Pilchen.

"Judges are not expected to gauge public opinion in making their decisions, but ... decide the legal issues before them 'undisturbed by the clamor of the multitude,' " writes Stephen Bright, director of the Southern Center for Human Rights.

Nevertheless, local politicians and special interest groups are increasingly mounting campaigns to remove judges whose decisions they dislike. Such campaigns often revolve around individual rulings on single hot-button issues such as child custody, the death penalty, and term limits, says Kenneth Rohrs, dean of the National Judicial College in Reno, Nev.

"There are more recall actions [today] than there were 10 years ago," says Mr. Rohrs, citing anecdotal evidence from judges and scholars. Prominent recent cases include:

*During last year's presidential election campaign, both Republican candidate Bob Dole and President Clinton criticized a decision by US District Judge Harold Baer Jr. to suppress drug evidence seized by New York City police. Mr. Dole called for the resignation of Judge Baer, who later reversed the controversial ruling.

*In Tennessee, Republicans successfully campaigned last August to defeat state Supreme Court Justice Penny White in a retention election after she joined the five-member court in overturning a death-penalty ruling.

Brochures attacked Judge White for sparing a man from execution in a murder-rape case because the crime was not "heinous" enough, when in fact a legal error demanded the man receive a new sentencing hearing, Justice White says.

The unseating of White demonstrates the growing politicization of judicial appointments, says Rohrs. Afterwards, Tennessee Gov. Don Sundquist suggested that "a judge [should] look over his shoulder" when making controversial decisions, or risk being "thrown out of office."

*In Nebraska, Judge David Lanphier became the state's first Supreme Court judge in history to be ousted by voters when a special-interest group targeted him for a series of rulings against term limits in an election last November.

The Washington-based group USA Term Limits spent some $200,000 on mailings, TV advertising, and phone calls that focused on three rulings out of some 2,000 Judge Lanphier had made in more than three years on the bench. Lanphier, who says he was "caught off guard," spent only $80,000 on his campaign.

The money pouring in from outside Nebraska "is intended to have the effect of intimidating judges. Whether it will or not remains to be seen," Lanphier says.

Indeed, experts report that more money than ever, much of it from political action committees, is flowing into judicial elections across the country. For example, Michigan, Mississippi, Texas, New York, and Washington state have seen a large influx of special-interest money in judicial races, according to local press reports. And a greater number of judicial elections are being contested, Rohrs says.

Still, the impeachment of judges remains relatively rare.

In Illinois, a bipartisan panel of lawmakers in Springfield is expected to announce today whether Heiple's actions constitute grounds for impeachment. Heiple's attorney, former Gov. James Thompson, argues that impeachment is not supported by historical precedent and would have a chilling effect on all judges.

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