Out of Order

When the case of a woman who claimed she was fired after refusing sex with her boss came before Circuit Judge Robert H. Dierker Jr., he didn't just issue an order. He let the world know a little too much about his politics and what he thinks about the "de

Peter Joy, a law professor at Washington University, walks an analytical line of slightly wider berth. "I think an argument could be made that this is something that might diminish the integrity of the judiciary or the integrity of the judge, but that's going to be a matter I suspect people will take different opinions on," he says.

"On the one hand, someone may argue that the judge has a First Amendment right of freedom of expression," Joy continues. "On the other hand, a person might say that the First Amendment right really has to yield if what is being expressed raises questions about whether this judge is acting in a fair and impartial way towards the litigants appearing before him."

But for the plaintiff and her attorney (neither of whom could comment, on or off the record), walking into Dierker's courtroom was not an unpredictable trek through unknown territory. The judge's political passions were well-known long before he, as presiding judge, accepted the case in the first place.

In the 1997 Law Day edition of the St. Louis Daily Record, for instance, the theme was "Celebrating Your Freedom." In that issue, local judges, lawyers and law professors contributed standard articles such as "Lawyers Play Vital Role in Struggle for Freedom" and "Celebrating Our Freedom on Law Day."

But one, written by Judge Dierker, stood out: "Celebrate Your Freedom -- Judges Permitting."

Dierker made no secret of his political beliefs. A Harvard graduate and former associate city counselor for the city of St. Louis, Dierker was appointed to the bench in 1986 by Republican former Gov. John Ashcroft, and, in the Law Day article, praised Ashcroft's attempts as a U.S. senator to bring down the "oligarchy of judicial activists."

For anyone familiar with judicial politics, the title of the article alone set off alarms. Dierker was writing -- sympathetically -- about a staunchly conservative political drive to push "liberal" and "activist" judges off the bench. During the last two years, Ashcroft has led the Republican-dominated Senate's attack against President Bill Clinton's nominees, leaving a serious number of federal judicial vacancies unfilled. Even Chief Justice William Rehnquist -- no defender of liberalism, named to the high court by President Richard Nixon -- has asked the Republicans to end the blockade.

It is a belief actively embraced by a lingering number of conservatives -- including members of the Christian Coalition, the Heritage Foundation and the Eagle Forum -- that a "liberal" judiciary is attempting to usurp the will of the people on a grand scale by overturning laws enacted by Congress, state legislatures, executive orders or public referendums.

They crusade against what they call "judicial activism," and though the political concept is at least as old as the Constitution itself, it was not until a decade ago, when former federal Judge Robert Bork was bypassed for the Supreme Court seat and then lambasted the system as an "antidemocratic, indeed despotic judiciary," that conservatives, including Judge Dierker, turned public courtiers of the idea.

Bork's nomination to the high bench was originally opposed by groups such as the Alliance for Justice, because they feared Bork's political philosophy would inhibit the conservative's ability to rule impartially.

A few years before his nomination, for example, Bork wrote that "difficult as white-black relations have been and are, the influx of Hispanics and Asians promises to make the tensions even greater as Americans fight over group entitlements. Radical feminism and the homosexual rights movement are dividing us even further, while the madness of multiculturalism threatens to make our culture a chaos."

In the opening of his Law Day article, Dierker quotes Bork at length. Even in his order concerning the sexual-harassment case, the judge refers readers to Bork's Slouching Towards Gomorrah, a truly cheerless political forecast written in 1996. Tim Lynch, assistant director of the Center for Constitutional Studies at the Cato Institute in Washington, D.C., a nonpartisan public-policy research institute, says the constitutional job assigned judges is simple: Look at laws passed by the people or their elected representatives and make sure those laws are constitutional.

"Conservatives use terms like 'judicial activism,' or 'defer to majority will' or 'whatever the people's elected representatives have decided is good public policy,'" Lynch says. "They speak in those kinds of terms as though overturning a law is some kind of extraordinary event that should be very rare.

"But we think the role of the courts is to protect individual rights and to protect the Constitution, so they should be very aggressive in scrutinizing laws," Lynch continues. "We think the term 'judicial activism' is vague and misleading, because conservatives tend to use it as describing courts that overturn laws or the will of the people. But whenever the courts make a decision or decide something is unconstitutional, well, that's what judicial review is all about. It's what the courts are supposed to do."

One of the most-cited examples of judicial activism is when California voters approved prohibiting affirmative-action programs with Proposition 209 in 1996. After the vote, U.S. District Judge Thelton Henderson ruled the law unconstitutional because minorities would "face an immediate possibility of irreparable harm." Conservatives such as Ashcroft say Henderson overstepped his judicial role, because, as Ashcroft told conservative Christian radio host Chuck Baldwin on a recent show, "Perhaps someone should remind Judge Henderson that the constituting doctrine of all truly free societies is that rights belong to individuals, not groups. Tragically, the courts have turned your individual rights into group rights as the aggrieved rush to our least representative branch in search of entitlements."

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