If you want to see an independent judiciary in action, look West, to France. The nation’s judges went on strike last week. Jurists laid down their gavels and refused to attend to all but the most serious cases. Why? France President Nicolas Sarkozy played the Willie Horton card. Go ahead and sneer all you want about "Freedom Fries." In France, the judiciary appears able to do something other than bend and spread, a distinctly American judicial pastime, when a politician grandstands about crime.
French authorities have arrested a 31-year-old man, Tony Meilhorn, and accused him of kidnaping and murdering a teenage waitress in western France. Her body was found, beheaded, in an abandoned quarry. Mr. Meilhorn, who was recently released from prison, has 15 convictions to his name, including crimes of violence. Indeed, he was registered as a sex offender in France. Mr. Sarkozy promptly labeled him a monster, and laid blame on a judiciary that failed to do its job. He promised to punish judges who were negligent or had otherwise erred in the performance of their duties.
An outraged French judiciary, with the support of several police unions, struck back, calling for a general strike this past Thursday, a strike that virtually shut down the French courts.
"This isn’t the U.S., where separation of powers is a constitutional protection," said Marc Trevidic, president of the French Association of Investigating Magistrates. "We have to battle to keep what independence we have in order to keep serving justice as best we can – and with the limited means we’re given." Oh, Monsieur Trevidic, please don’t be deluded: This isn’t the United States of old.
Our jurists are independent most often in name only. On the state level, judges cower over the prospect of reappointment or re-election, fearing lest they offend the likes of Nicolas Sarkozy. Our federal judges, who enjoy lifetime appointments, enjoy their privileged perch a little too much to actually rock the boat. Our benches seat paper tigers, who growl the bully’s roar, but lack the courage to push back in any meaningful way against the executive and legislative branches. No judge here would go on strike to protest executive over-reaching. Indeed, these crippled and creative Solons most often bend over backwards to justify assertions of power by either the legislative or executive branch. Our judiciary has become passive, even flabby, in the assertions of what justice requires. We are a nation of nihilists, governed by chest-thumping cowards.
I am reminded of the piteous performance of United States District Court Judge Robert Chatigny before the Senate Judiciary Committee last year. Judge Chatigny had been nominated for a promotion, to a seat on the United States Court of Appeals for the Second Circuit, one of the nation’s most prestigious courts. When lawmakers grilled him about his bullying of a lawyer in a post-conviction death-penalty case involving Michael Ross, Judge Chatigny all but wept in contrition. Gone was the imperious threat to take the license of Michael Ross’ lawyer, T. R. Paulding, who, on his client’s behalf, sought to end further attempts to seek post-conviction relief. You could almost taste the bitter mucous of Judge Chatigny’s choked-up apology as he sought not so much to stand tall in defense of what he thought was just, but, rather, to simper any way he could for legislative approval. President Barack Obama rightly withdrew the nomination of Judge Chatigny, but the judge remains comfortably chained for life to his courtroom.
It is refreshing in the extreme to see the French judiciary push back against the populist grandstanding of President Sarkozy. What a contrast to the American judiciary’s silence when George H.W. Bush made a household name of Willie Horton. Mr. Horton, you will recall, was released, in 1986, on a furlough program while serving a sentence of life for murder. While released, he committed another violent crime. Bush made sport of this. He laid it at the feet of Democratic presidential candidate Michael Dukakis, who, as Massachusetts governor, supported the furlough program. The American judiciary was silent when this occurred. Silent.
We boast in the United States of having a federal government composed of three separate and coordinate branches of government. Yet the judiciary wilfully and with cowardice aforethought has transformed itself into the weakest branch. When lawmakers enact new and harsher punishments in response to the latest outrage to hit the press, our judiciary is quick to rubber stamp the theft of judicial independence at sentencing. When lawmakers require new and harsher requirements for those convicted of crimes to register with law enforcement after serving their sentences, our courts are quick to justify the practice. When juries sit in judgment of a person accused of a crime, our courts deny them the right to decide both questions of fact and law, reserving to themselves the right to hide the truth from jurors, as though deceit secures the blessings of liberty to anyone. Our judiciary has become a weak and timid sister, not even any longer a handmaiden of justice.
Both the French and American judicial system is underfunded and expected to do far too much with limited means. In the United States, judges whine, whimper and lobby for pay raises. In France, judges take to the streets. Who, I ask, is eating Freedom Fries now?