The Record (Bergen County) Tuesday April 25, 2006

OPINION

OTHER VIEWS

By PETER G.VERNIERO

SO-CALLED JUDGE-bashing must end. It hurts not only individual jurists but also the system as a whole by diminishing the judicial system's legitimacy and leaving the losing side of a dispute feeling ill-treated.

Judge-bashing is not always easy to define. Trying to identify it reminds me of former U.S. Supreme Court Justice Potter Stewart s well-known line about pornography: You know it when you see it

I define judge-bashing to mean an unfounded attack on a court's integrity. In extreme cases, it can lead to death threats against judges, which seem to be happening with alarming frequency - even the killing of their spouses and family members.

To he sure, judges are fair game for criticism when they misread a statute or commit any number of other human errors. And reasonable minds always can
disagree with a court rating or judicial philosophy, as I did many times in dissenting opinions while on the state Supreme Court

In contrast, unhealthy court-bashing involves unfounded personal attacks that question judges' motives and might sway them improperly to a favored position in some future case.

Such criticism ultimately is self-defeating. When someone publicly attacks a judge's integrity merely because the court has made an unpopular decision, the court's credibility is questioned. As a result, when future circumstances require a court decision with which that same critic agrees, that decision, too, is weakened. Everybody potentially suffers.

Retired U.S. Supreme Court Justice Sandra Day O'Connor has made that point eloquently. She recently warned that unfounded attacks on the judiciary threaten our constitutional freedoms. Judges cannot effectively resolve disputes if they fear reprisal for their decisions. Judge-bashing erodes judicial independence, which, in turn, degrades the rule of law.

Despite their power and authority, judges are vulnerable to criticism because they generally are not permitted to defend themselves. Indeed, judges
say very little in public beyond their judicial opinions and occasional speeches or lectures. For that reason, judicial supporters - bar officials, law professors and other leaders - have a special role in defending the judiciary whenever it is unfairly attacked.

Happily, we have a strong history of elected officials following court decisions even when they strenuously disagree with them (which is fortunate because the judiciary depends on the other two branches to enforce its decisions). There is one famous story to the contrary. In 1832, the U.S. Supreme Court under the direction of Chief Justice John Marshall decided a case against the state of Georgia. Legend has it that President Andrew Jackson responded, "John Marshall has made his decision. Now let him enforce it"

Some well-meaning court critics no doubt act out of frustration in what they view as an unelected - and thus undemocratic - judiciary. But that's exactly what the nation's founders intended. Federal judges and their state counterparts in New Jersey are appointed rather than elected precisely to fortify them against having to decide cases based on public opinion or popular will.

Still, the founders gave the public the final say. If we profoundly disagree with a court's constitutional ruling, we can amend the Constitution to set aside the court's interpretation. Admittedly, that's an involved process (as it should be, because we should not lightly tinker with constitutional text). Yet it's surely possible; we have amended our federal and state constitutions many times.
Decisions involving statutes are easier to address. An unambiguous act of the legislative branch can trump the judiciary's construction of any statute. In that fashion, our system of checks and balances is well-equipped to handle just about any erroneous court decision.

Resorting to that system when warranted is far more effective than judge-bashing. Our challenge is to ensure that the system prevails.

Peter G. Veniero, a former New Jersey Supreme Court justice, practices law at Sills Cummis Epsteln & Gross PC In Newark.