CHEAP SHOTS AT JUDGES

By Michael Kramer

At 5 o'clock in the morning on April 21 of last year, two New York City cops watched four men dump two duffel bags into the trunk of a double-parked red Chevrolet Caprice. The men ran off as the officers approached, but the driver permitted a search of the bags. Inside were 80 lbs. of cocaine and heroin worth approximately $4 million. Later, during a 40-minute videotaped confession, the driver admitted to being a professional drug courier. This had been her 20th trip.

Every child knows what it means to be caught red-handed, but not every judge does. The case was thrown out in January by Federal Judge Harold Baer Jr., who ruled that the cops lacked "probable cause" to search the bags. In a neighborhood where the police are known for being "corrupt, abusive and violent," Baer said, sprinting from the scene wasn't suspicious behavior at all. It was prudent.

The uproar was instant and predictable. Crime is on everyone's mind, especially in an election year. The Republicans instantly viewed Baer, who was appointed by Bill Clinton two years ago, as a good candidate for infamy. In the skilled hands of the G.O.P.'s attack dogs, Baer would become this year's Willie Horton, the killer whose parole came back to haunt Michael Dukakis in 1988. "Impeach him!" screamed Bob Dole, whose refusal to take even a tiny step toward initiating that severe sanction confirmed that his call was nothing more than a political stunt. But it was a potentially devastating one, as the White House knew. Clinton dispatched press secretary Michael McCurry to suggest that Judge Baer resign if he didn't reverse his ruling.

We'll never know how the game would have ended. Baer has proved that he can be both wrong and arrogant, but he is obviously not stupid. On April 1, he helped the man who appointed him by reversing his ruling, which left the President free to climb back onto the moral high ground. "It's important not to get into the business of characterizing judges based on one decision they make," Clinton said almost immediately after Baer fell on his gavel. Dole, too, accommodated the changed landscape with stunning speed. "I don't suggest we ought to be able to pressure judges, but we ought to be able to criticize [them] when we think they've made a mistake," he said last Wednesday.

The entire episode is a blot on both candidates. One can safely speculate that McCurry's threat caused Baer to see the case in a different light. Clinton interfered with the process as surely as if he had flown to New York to demonstrate against the judge's original decision. Dole's post-reversal words appear equally hypocritical. When the leader of the Senate, the body with the power to remove judges, calls for a jurist's impeachment, that's pressure.

It has now fallen to the head of the third branch of government to set matters straight. In a speech last week, Chief Justice William Rehnquist reminded the nation that while criticism is proper (as Dole finally said), calls for resignation and impeachment should never come from responsible officials when they simply disagree with a particular judicial decision (as Clinton finally said). The problem, of course, is timing. Had Dole and Clinton celebrated judicial independence when it mattered, they might not seem so phony in their constant preaching about morality and the value of a more moderate civic discourse.