Archive for Wednesday, January 21, 2004

Judges making headlines

January 21, 2004


I have been thinking about judges recently. This isn't all that surprising since I am a law professor. But recently judges have been in the news for a variety of reasons. Indeed, if one looks at the newspapers or watches the news on television it is quickly apparent that judges make frequent appearances because they are so central to our lives. I thought that it might be appropriate to comment on several recent judicial developments in this column.

First, of course, on the local front is Judge Terry Bullock of Shawnee County. Judge Bullock is one of the best -- and bravest -- judges in Kansas. He is also a teacher and active in his community. His most recent major decision, on school funding, has forced the Kansas Legislature to confront the massive fiscal problems our schools face. It is a controversial decision, loved by some, hated by others. But there can be no doubt of its importance.

Whether it is eventually appealed and upheld is actually far less important than the fact that it has focused new attention on the structural problems of school finance in Kansas and forced a legislature, which for years has permitted what was once one of the best educational systems in the United States, to decline dramatically, to come to grips with the situation.

It is especially fitting that the Kansas Legislature be forced to face up to its responsibilities to the children of Kansas this year, for 2004 is the 50th anniversary of Brown v. Board of Education, a case central not only to civil rights in this country but to the development of quality education for all American children.

On the national level, much attention has been turned recently to the "recess appointment" of Judge Charles Pickering by President Bush to the U.S. Court of Appeals for the 5th Circuit. Judge Pickering's confirmation by the Senate has been delayed for more than two years because of questions about his record posed by Democratic senators. This delay has been a major source of contention between Senate Democrats and Republicans and has angered the White House.

By virtue of this interim appointment, Judge Pickering will now be able to sit on the 5th Circuit until 2005. What I find so interesting about this is not the president's use of a "recess appointment." Such appointments have been made for years and every senator understands that they are a part of the political process, even if some don't like it. The use of a recess appointment simply means that the battle over Judge Pickering goes into abeyance for a while and that he will have some to influence federal law during the short tenure of his current appointment.

What I find most interesting about this appointment is the laudatory statements made about Judge Pickering by the president, by his supporters in the Senate and by the current administration. Rightly or wrongly, Judge Pickering, like other controversial nominees to the federal bench of late, has been hailed as a great jurist who will serve the country well.

This makes me wonder whether the president and Atty. Gen. John Ashcroft ever talk about these appointments. While the president and Senate sing the praises of federal judges, the attorney general continues to attack the federal judiciary and attempts to regulate, monitor and even penalize them in new and, in the opinion of many lawyers and commentators, inappropriate ways.

Perhaps it is time, if we are to believe that the federal judiciary, so many of whom are, in fact, appointees of this president, his father and President Reagan, are, in fact, capable as we are told, to tell the attorney general to stop his attacks on their independence and let them do the jobs for which they were appointed.

Finally, I have been particularly amused that Great Britain has finally, after more than 1,000 years, managed to appoint a woman as one of its highest judges, a Lord of Appeal in Ordinary. Baroness Hale (all of Britain's highest ranking judges who sit as "Law Lords" are ennobled) is the first woman in British history to be appointed to one of the highest judicial offices. This is a great step forward for women lawyers in Britain. The irony, of course, is that just as Baroness Hale is taking her place among her male counterparts, the current government is working on a plan to abolish these judgeships and establish a wholly new American-style Supreme Court.

One can only hope, that if Baroness Hale finds that her new job is short-lived, she may be among the first appointees to the new high court, whatever form it may take. At any rate, our British "cousins" have finally begun to catch up to us, although they will need at least one more woman Law Lord before they match the American tally.

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