BY MAXIMILIAN AMSTER
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The Harvard Federalist Society brought Judge William H. Pryor of the U.S. Court of Appeals for the Eleventh Circuit to a packed Hark South on Friday to speak on the controversial topic of judicial independence. He addressed recent, public claims made by former Supreme Court Justice Sandra Day O’Connor and many other important members of the legal profession that the independence of the judiciary is currently at risk due to excessive public criticism, legislative usurpations, and physical threats against judges.
Judge Pryor drew from history, constitutional political philosophy, and his own practical wisdom and experience. He cited as examples of times of real challenge to the judiciary the Jefferson presidency, the Reconstruction, and the New Deal era, pointing out the relative absence of any such explicit attack on the judiciary in our own age. He criticized those who reflexively bristle at criticism and declare, as Justice O’Connor has, that “the breadth and intensity of rage currently being leveled at the judiciary may be unmatched in American history.”
Pryor said that such hyperbole is both factually inaccurate and cheapens the sacrifices of those judges who suffered palpable and terrible threats, such as the judges in the Deep South during the civil rights struggle. And he drew from his own experience as one who has held political office – Judge Pryor was Attorney General of Alabama before being appointed to his current position – to conclude that the Senate confirmation process simply isn’t as bad as running for other offices. He ironically recited for his fellow judges that maternal admonition to fortitude, “sticks and stones may break my bones…”
The Judge counseled his fellow judges to adopt a policy of restraint as a time-proven method of reducing criticism of the courts. Recalling the three historical periods of challenge to the judiciary, he laid out in great detail how in each period the Supreme Court minimized the susceptibility of the judiciary to political attack by prudently refusing to weigh in on the controversies or by crafting principled positions of compromise. And this is how it should be, he asserted, citing Hamilton’s statement in Federalist Paper No. 78 that the judiciary should control “[n]either the sword [n]or the purse.” Ultimately, Judge Pryor argued, it is and it was meant to be; judges must rely solely on the persuasiveness of their written opinions to justify their actions.
Judge Pryor also took questions for 10 minutes before leaving. He is not convinced that the election of judges poses a grave threat to their independence, despite coming from Alabama, the state which spends more money on judicial election campaigns than any other. He also argued that legislative sentencing guidelines do not infringe upon judicial independence because they, in effect, merely transfer authority from parole boards and probation officers to its rightful source, the legislatures.