Judge Criticizes Supreme Court
Nov. 16, 2002
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WASHINGTON (AP) _ An appeals court judge accused the country's highest court on Saturday of ignoring the Constitution, dodging tough cases and awaiting an opportunity to strike down the death penalty.
Judge Laurence H. Silberman, a semiretired judge on the U.S. Court of Appeals for the District of Columbia, used a speech at the conservative legal group the Federalist Society for the unusually harsh criticism of the Supreme Court.
``The court's policy choices masquerading as constitutional law are generally accepted so long as they are well received by elites. Ironically, the Supreme Court has become what the (Constitution) framers envisioned for the role of the Senate,'' Silberman said. ``I think elite public opinion is the primary guide to the Supreme Court.''
Silberman was appointed to the bench by President Reagan in 1985. He took senior status in 2000, but serves on a review court which considers the government's authority for searches and wiretaps.
The judge said the Supreme Court ``has behaved irresponsibly in ducking'' affirmative action cases. He also said he believes a majority of the nine justices want to abolish capital punishment but they may be put off by public support for the death penalty.
Justice Sandra Day O'Connor, who is considered a swing vote in capital cases, has been testing the waters to see how people would respond to a ruling that declared executions unconstitutional, Silberman said.
Law professors and other lawyers at the event said they do not expect the Supreme Court to strike down capital punishment.
``It would be a very sudden and dramatic reversal,'' said Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation.
Eugene Volokh, a former law clerk to O'Connor, said he thinks ``Like most Americans she believes that it's not only constitutionally permissible, but also sometimes morally the right solution'' to impose the death penalty.