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Breyer says politics a threat to courts' independence

Attacks on judges raise concerns

CHICAGO -- Supreme Court Justice Stephen Breyer said yesterday that rulings on difficult subjects like gay rights and the death penalty have left courts vulnerable to political attacks that are threatening judicial independence.

Breyer urged lawyers to help educate people about court responsibility to be an independent decision-maker.

''If you say seven or eight or nine members of the Supreme Court feel there's a problem . . . you're right," he told the American Bar Association. ''It's this edge on a lot of issues."

Senator Lindsey Graham, Republican of South Carolina, who was speaking with Breyer, said, ''The politics of judges is getting to be red hot." He said Supreme Court rulings on the Pledge of Allegiance and Ten Commandments have captured the public's interest and polarized Democrats and Republicans.

''There's nothing that's not on the table," former solicitor general Theodore Olson said of the court's work, which this fall includes issues on abortion, capital punishment, and assisted suicide.

Breyer said the nine-member court is focused on constitutional limits on major fights of the day. ''We're sort of at the outer bounds. And we can't control politics of it, and I don't think you want us to try to control politics of it," he said.

Breyer, Olson, and Graham were discussing the future of courts on the final day of the ABA's annual meeting in Chicago.

Also yesterday, the group agreed to endorse federal protection for journalists who refuse to reveal their sources to prosecutors.

The measure, which was approved overwhelmingly by voice vote, authorizes the organization to lobby Congress, where ''shield law" proposals are pending.

Judicial independence has been a major theme at the meeting of the ABA, a 400,000-member group.

The group's policy-making board passed a resolution urging elected officials and others to support and defend judges. New group president Michael Greco of Boston said judges have faced physical threats, and threats of impeachment from Washington political leaders unhappy with court decisions.

''If we do not protect our courts, our courts cannot protect us," Greco said.

On another subject, Greco defended the ABA's role in checking the background of Supreme Court nominee John Roberts and other federal judicial nominees. The committee has spent the past two weeks reviewing Roberts's work on an appeals court and interviewing people who have worked with him.

''The ABA does not, and we will not, protect the interests of any political party or faction, nor the interests of any ideological or interest group," Greco said.

Breyer told the ABA that the retirement of Sandra Day O'Connor is a personal loss and loss for the nation.

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