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Federal judges under assault

The framers of the American Constitution took care to assure the independence of federal courts from political pressures, making the judges removable only by the process of impeachment. That independence has enabled the courts to play their crucial role in keeping this a free and open country.

Try to imagine the United States today if racial segregation had not been struck down by the Supreme Court in 1954, or if federal judges had not in numberless cases protected the right of Americans to say unpopular things. Such decisions would have been far less likely _ perhaps impossible _ if federal judges, like most state judges, were subject to the passing passions of voters.

The independence of federal judges is now under assault. In a recent column I described an attack by a right-wing group on a federal district judge, Stewart Dalzell, because he had freed on a writ of habeas corpus a woman convicted of murder and sentenced to life by a Pennsylvania court. But the attack on Dalzell is more significant, and more menacing, than I realized.

Dalzell was cited by conservatives as an example of "activist liberal judges" appointed by President Clinton. He is actually a lifelong Republican who was appointed by President Bush. In the case of the convicted murderer, Lisa Michelle Lambert, he found after a lengthy hearing that she was "actually innocent." Because the prosecutors in Lancaster County, Pa., had used perjured testimony and suppressed evidence favorable to her, he barred a retrial of Lambert.

The decision brought outrage in Lancaster County. A petition to impeach Dalzell was signed by 37,000 people. Dalzell got death threats, and marshals were assigned to protect him.

Sen. Arlen Specter, R-Pa., and two Republican representatives, Joseph R. Pitts and George W. Gekas, proposed legislation that would overrule Dalzell's decision to bar another trial of Lambert. The bill says that a federal judge reviewing a state conviction on habeas corpus may not prohibit a retrial unless the defendant was subjected to double jeopardy or other specified constitutional violations. The legislation would cover cases pending on the date of its enactment.

Retired Pennsylvania Judge Edmund Spaeth criticized Specter to his face at a recent meeting of the Philadelphia Bar Association. Spaeth said the Specter bill, coming amid the controversy over Dalzell's decision, encouraged people to say, "We do not have confidence in the justice system."

Specter replied at the meeting that his bill was a restrained response to Dalzell's decision. "In precluding Lancaster County from retrying Ms. Lambert he made new law," the senator said. "There was no precedent for that." And he vigorously defended his action when I telephoned him.

"It arose in the context of a very strong public demand for impeachment," Specter said. "I immediately said there were no grounds for impeachment.

"I spend a lot of my time defending judges. I've got a very good record on it. But I think it's beyond the pale when a judge forbids a retrial. And it's a legislative power to fix the remedy for constitutional violations. This is a very responsible approach."

But if a judge goes wrong, the way to correct him in our system is by appeal. And this decision has been taken to the 3rd U.S. Circuit Court of Appeals. Surely the responsible thing for an experienced lawyer like Specter to do was to tell his constituents that they should await the result of the appeal, not to shortcut it by legislation.

Judges cannot defend themselves. When they are under assault, a responsible political leader should explain their role in our constitutional order. Someone should be explaining now what is at stake in the campaign to intimidate federal judges.

Someone should be warning that without independent judges, constitutional rights would be meaningless.

New York Times News Service