• History shows danger of politicized court
    May 26,2005
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    Asian-Pacific American Heritage Month in May and the ongoing fight over political control of the federal judiciary would seem to have no relevancy to each other. But the recent death of Fred Korematsu suggests differently. Korematsu ought to be a reminder of the serious consequences of a judiciary that cannot stand up to the politics of the day.

    Republican senators have retreated for the moment from their plan to abolish filibusters for judicial nominations, but should they move in that direction again, their action would result, not only in greater partisan control of the judiciary; it would also compromise the ability of judges to guarantee the rule of law and protect constitutional rights.

    Korematsu is known by every law student in the country for his legal challenge to the World War II internment of more than 100,000 American citizens of Japanese ancestry. Many of them were women, children, and elderly men. Korematsu challenged the constitutional validity of the incarceration based on its racially discriminatory application and the inherent racial prejudice it expressed. Unfortunately, the U.S. Supreme Court ruled against him.

    The internment and the case outcome are now universally reviled. At the time, however, it commanded significant public support. On the Supreme Court, even now-revered liberal legal minds, like Justice Felix Frankfurter, a former Harvard law professor, and future stalwart defenders of individual rights such as Justices Hugo Black and William Douglas, all voted for the shameful outcome.

    Ironically, Frankfurter was a European Jewish immigrant who ought to have been familiar with the plight of persecuted minorities and the effects of discrimination. Even then-California governor Earl Warren, who would later become chief justice of the U.S. Supreme Court and author the racial segregation-ending decision in Brown v. Board Education, supported the internment.

    Decades later, Peter Irons exposed how the Supreme Court had been duped by government misrepresentations about the national security threat posed by Japanese-Americans. The outcome was possible, however, only because the Supreme Court justices did not dare to seriously probe governmental assertions about the internment's supposed necessity — as they would have done in any other instance.

    Why did the judiciary abdicate its responsibilities so readily? After all, there were dissenting voices on the court like Justices Frank Murphy and Robert Jackson. They saw the internment measures for what they really were — a product of prejudice and hysteria.

    Maybe the judges supporting the internment were swept up in the overwhelming fears of war after Pearl Harbor. Maybe the prevalence of public prejudice and legally sanctioned discrimination against Asian-Americans (and against other racial minorities, for that matter) colored their thinking. But at least one matter must have been prominently on their minds — the not too-distant memory of Franklin Roosevelt's court-packing effort in 1937.

    Because of the Supreme Court's initial opposition to New Deal legislation in the 1930s, Roosevelt had sought to assert greater political control over the judiciary. One proposal was to expand the size of the Supreme Court.

    The effort was ultimately unsuccessful. But Frankfurter, Black, and Douglas had all been appointed in the wake of that constitutional showdown.

    We can never know for certain the effect of political and other pressures on the decisions of judges. Political threats and partisanship, however, can be anything but helpful to the judiciary's duty of upholding the rule of law and protecting individual rights. In the Korematsu case, it contributed to the failure of the Supreme Court to carry out its constitutional responsibility to the people that needed its protections most.

    In the current political fight, the lessons of history are unlikely to sway those whose primary objective is to gain political control of the judiciary. But it ought to matter to everybody else, including moderate Senate Republicans.

    After all, to paraphrase Edmund Burke, all that is necessary for the triumph of extremists is for moderates and everybody else to do nothing.

    Tseming Yang is a law professor at Vermont Law School.
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