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By Philip Kennicott

King Solomon, hearing the case of Harlot v. Harlot , in which two women
laid claim to the same baby, proposed cleaving the child in half. This, in
turn, ferreted out the real mother, who gave up the baby rather than see it
die. "And all Israel heard of the judgment which the king had rendered,"
says the Bible, "and they stood in awe of the king, because they perceived
that the wisdom of God was in him, to render justice."

One might think this would be perceived as an outrageous bit of arrogance
from the bench, yet Americans, in their literature, their myths and in
rhetoric we still hear today in arguments about the judiciary, have an
abiding affection for Solomon's style of justice -- justice that is simple,
often deadly and delivered directly from God. So much so that the kind of
justice that replaced Solomon's wise improvisation is under stinging attack.

As the Senate considers changing the filibuster rule in judicial
confirmations, a move that could radically change the makeup of the federal
courts, the language of the debate rings with populism. The court system,
say these critics, harbors arrogant and abusive judges who make up law and
policy rather than decide cases based only on the Constitution and
established precedent. The rhetoric borrows terms and ideas from America's
ancient argument with aristocracy: Judges are arrogant, even tyrannical, a
law unto themselves, indifferent to public opinion. But it also recalls a
fantasy of frontier justice that may well date back to the theocratic
justice of the Puritans, and ultimately to the warrior-judges of the Old
Testament.

The religious broadcaster Pat Robertson has regularly referred to American
judges as an "oligarchy." It is a rare example, from a voice on the right,
of invoking something that might be seen as "class warfare." But he's not
alone. A host of tropes, all derived from the idea that elite status leads
to decay, dissolution, even impotence, have been thrown at judges recently.
Anti-abortion activist Randall Terry, angry about Florida Circuit Court
Judge George Greer's order to remove Terri Schiavo's feeding tube,
suggested on MSNBC that corruption is endemic among judges: "Judge Greer is
a corrupt judge. And that should not surprise anybody. People find out about
corrupt judges all the time."

Mark Levin, author of "Men in Black: How the Supreme Court Is Destroying
America," mixes the idea of corruption with the (also anti-aristocratic)
idea that many judges are old and dithering. Of the men and women who have
held the position of Supreme Court justice, he said (in an interview with
Robertson), "Some have been average, some have been racist, some have been
crooks, and some have been senile." An array of angry Web sites makes this,
and worse, their stock in trade, collecting every headline and Web link
related to sexual, financial or ethical improprieties, suggesting judges are
predatory and ungovernable.

In a speech in which he implied that recent violence against judges may be
related to broader anti-judiciary sentiments (he later expressed regret),
Sen. John Cornyn (R-Tex.) used less inflammatory, but equally
anti-aristocratic terms. Upset that some judges are seeking insight from the
legal systems of other countries, he accused them of being elitist, and even
hostile to American values. And he suggested that there are some judges who
fancy themselves members of a higher caste: "These are not, as some people
have suggested, high priests able to discern great truths that you and I are
unable to figure out."

In 1888, Edward Bellamy published "Looking Backward: 2000-1887," one of the
most popular novels of its time, and a highly influential utopian fantasy of
a better, simpler America. In the year 2000, according to Bellamy, America
would be one giant corporation, with the labor and benefits shared among all
citizens. "The law as a special science is obsolete," explained one of
Bellamy's characters from the year 2000. "It was a system of casuistry which
the elaborate artificiality of the old order of society absolutely required
to interpret it." Bellamy's markers of the "old" style of American justice
-- "casuistry," "old order of society," "elaborate artificiality" -- already
suggest, in the late 19th century, an emerging view of judges as a clique of
silly dons, specializing in how many angels can dance on the head of a pin.

Bellamy was writing at a moment in American history when a nostalgic
fantasy of the old justice of the West was beginning to fade. Passing away,
and into legend, were men such as Roy Bean, the infamous "hanging judge" of
Langtry, Tex. At the end of the 19th century, Bean became famous for
dispensing justice from a saloon that also dispensed beer and liquor. Bean's
view of the law, when not diverted by bribes, was straightforward and
literalist in the extreme. When an Irishman killed a man of Chinese
heritage, Bean supposedly consulted his law books and declared, "I find the
law very explicit on murdering your fellow man, but there's nothing here
about killing a Chinaman. Case dismissed."

Vernon Billings, of the Judge Roy Bean Visitors Center in Langtry,
qualifies this a bit: "The newspapers said that a lot of the time when he
read from his law books, they were upside down." Billings also says that a
lot of visitors to Langtry think a little more Roy Bean-style justice is
just what the country needs right now.

Bean was, in many ways, the living embodiment of a character from Mark
Twain's 1872 comic travelogue "Roughing It." Twain's Slade was a gun for
hire, "whose energetic administration had restored peace and order to one of
the worst divisions of the road." But, like Bean, he was little better than
the outlaws he was supposedly keeping in line. In one of the most remarkable
scenes in Twain's book, the real law, a gray, dull thing encroaching on the
once lawless West, finally catches up with him. Slade, a de facto justice of
the peace, is hanged in the presence of a colorless judge whom he once
threatened. There's a pathos, a nostalgia to these pages that suggests they
might well be America's own version of one of the great literary legal
scenes in Western literature: the final pages of Aeschylus's "Oresteia," in
which the avenging furies, who harry the guilty, are sent underground, in
favor of a new, more legal system of justice in Athens.

The aristocratic figures who would replace the Roy Beans, in literature and
in reality, were often presented in American literature as slightly
ridiculous and detached from society -- characteristics that would darken
into the rhetoric we hear today about elitist judges out of touch with
American values. In Willa Cather's "A Lost Lady," a judge is marked as an
aristocrat because he's from Virginia, and because he held on to a dusty
library of books: "He had brought them West with him, not because he read
them a great deal, but because, in his day, a gentleman had such books in
his library, just as he had claret in his cellar." Twain, in "Pudd'nhead
Wilson," gives us another aristocratic judge -- like Cather's character he's
also from Virginia, a marker of the old American aristocracy -- who is the
founding member of a free-thinkers society: "he was the person of most
consequence in the community, and therefore could venture to go his own way
and follow out his own notions."

These two archetypes, the judge as law-giver, Solomonic provocateur,
justice of the peace, and the judge as independent aristocrat, survive
intact. All the high-handed dispensers of fast justice on afternoon
television, the Judge Judys and Roy Browns, are essentially derived from the
fantasy of frontier justice. And all of the judges caricatured today as
aristocrats, tyrannically overruling the popular views of common, simple
people, are the sad, inevitable extension of Cather and Twain's Virginians
with books. But the argument, today, has moved on from these slightly
eccentric individuals to a sense, among many on the right, that it is the
judiciary itself that is corrupting.

"There is a culture that has grown up over a long period of time, that
really has led many judges to believe that they are not mere mortals," says
Don Feder, who helped organized last month's "Confronting the Judicial War
on Faith" conference. "It is probably subconscious, it is probably something
that they never express, or consider in their conscious mind. [But] a lot of
judges really believe that they are God, that being appointed to the bench
is like being canonized in the Catholic Church, or being deified." Asked
what causes this transformation, which he compares to the Roman emperors
declaring themselves gods, Feder argues that it's because they adopted "the
views of the people they talk to at Georgetown cocktail parties, the views
of the cultural elite."

Judge Boyce F. Martin Jr. of the U.S. Court of Appeals for the 6th Circuit
says he thinks, if anything, the federal judiciary is much less upper-crust
than in the past. "It is far more egalitarian today than it was 40 years
ago," he says, with the perspective of 20 years on the Court of Appeals. "In
the 1960s it was white, male and moderately weighted towards Protestantism."
He argues that President Bush, following in the footsteps of predecessor
Bill Clinton, has moved away from the "old way of doing things," which was
to appoint the senior partners of blue-chip law firms.

But Judge Gerald B. Tjoflat, of the 11th Circuit Court of Appeals, points
out that there are also issues of language that color the public's
perception of the judiciary. "Sometimes judges are their own worst enemies,"
he says. "You don't have to be condescending, but it takes skill. The last
thing you want is the reader, because of rhetoric, or language, to be shut
off halfway through the decision and just put the paper down." Too many
judges, in Tjoflat's view, write without sensitivity to the public's broad
sense of right and wrong, and discerning nose for egregious injustice.

It's curious in Feder's language of deification and canonization, in
Cornyn's reference to "high priests," the degree to which anti-judicial
rhetoric borrows the language of anti-Catholicism. It's especially odd,
today, that these (perhaps subliminally) anti-Catholic ideas persist in a
debate that has aligned Catholics with traditional social conservatives over
cases concerning abortion, homosexuality and euthanasia. The Catholic
Church, though it may today be in agreement with conservatives on many
social issues, has long been on the receiving end of rhetoric remarkably
similar to that being directed at the federal judiciary. It has been derided
as anti-democratic, for standing apart from the mainstream of American life,
for importing "foreign" elements into American culture, for being
intellectually superior, and governed by rules and values characteristic of
an arrogant, priestly class.

Is this anti-Catholic terminology merely accidental? All the derisive talk
of elite priesthoods is probably meant as no particular slight to
Catholics. But that might be of little comfort if the interests of the
Catholic Church and anti-judiciary activists ever diverge -- if, for
instance, the Church (or any other church) ever needs to rely on the federal
judiciary to protect it from legislative persecution. And if the
anti-elitist rhetoric directed at judges today isn't just an occasional
flare-up of ire sparked by particular decisions, but part of a broader
ideological agenda within American public life, then other institutions that
resemble the judiciary, and the Catholic Church, may have reason to be
concerned as well.

Academia, which is also an institution set apart from the mainstream of
American life, given to unpopular pronouncements and governed by rules that
elevate and protect for life the tenure of often arrogant individuals, has
already found itself under legislative attack. The leveling power of
untrammeled democracy has a voracious appetite -- which is one of the
arguments for creating spheres that are protected from its power.