Delaying Judgment 

House Majority Leader Tom DeLay says the federal judiciary needs to be reined in. Montana District Judge Don Molloy isn’t taking the bait.

Certain positions in public life demand respect, whether that respect takes the form of reverence or fear. Religious leaders stationed behind the pulpit call up those feelings for some. Police officers, in their distinctive cars and unmistakable uniforms, are sure to invoke strong feelings in nearly every American. But above all, a black-robed judge commands awe. Judges are mysterious figures to most lay people, and many Americans probably don’t know the names of their local jurists. Yet they dread the day they find their fate in the hands of some stone-faced man or woman addressed by the title “Your Honor.”

They are feared by the criminal and hated by the zealot. We depend on them to maintain the fabric of justice. They are the irreplaceable pillars of democracy.

And they are under attack.

Right-wing Christian groups all over the country are mobilizing in an effort to reform the federal bench in the wake of the Terri Schiavo case. While America watched the Schiavo drama unfold, representative Tom DeLay, the Republican House Majority Leader and a former exterminator from Sugarland, Texas, plotted his attack.

The federal courts’ refusal to get involved in the Shiavo case—after lower courts ordered doctors to remove her feeding tube—prompted DeLay and Senate Majority Leader Bill Frist to strong-arm Congress into passing two bills giving the federal courts the authority to intervene, on the premise that Schiavo’s constitutional rights were being violated. Federal judges refused to take the bait, knowing that giving in to that kind of emotional political pressure would mean becoming the type of “activist” judges that Republicans claim to despise.

Upon Schiavo’s death, DeLay issued his call to have activist judges reined in, firing up his band of conservative Christian “foot soldiers” to take to the airwaves, march in the streets and write letter after letter promoting war against a “judiciary run amok.” Rep. DeLay even went so far as to make vague threats against the judges in the Schiavo case, saying they will “have to answer for their behavior.”

With the Shiavo affair still warm, conservative leaders gathered at a conference called “Confronting the Judicial War on Faith.” DeLay was among the dignitaries at the event, where, according to The Nation’s Max Blumenthal, GOP Sen. Tom Coburn’s chief of staff exclaimed, “I’m a radical! I’m a real extremist. I don’t want to impeach judges. I want to impale them.”

The assault on the federal bench, led by DeLay, is seen by many as a power grab by conservative Republicans not satisfied with control of Congress and the White House. DeLay Republicans want the judiciary, too, even if it means undermining that which they claim to hold sacred: the Constitution of the United States.

And the fight isn’t limited to the House of Representatives. Senate Republicans are threatening to employ the so-called “nuclear option,” a rule change that would preclude the possibility of minority filibuster of judicial appointments and force yea or nay votes on President George W. Bush’s controversial judicial nominees without extended debate.

The federal judiciary consists of 877 seats, of which 831 are currently filled, leaving 46 vacancies that could be appointed by the president. It is not unrealistic to imagine that by the end of Bush’s second term, close to 60 percent of the federal bench will be occupied by Republican appointees.

Yet ideologues like DeLay, Rep. Steve Chabot, R-Ohio, and columnist and conservative matriarch Phyllis Schlafly suggest that judges who make rulings not in step with their own conservative agenda should be impeached and replaced with Bush’s nominees.

Who are these “activist” judges who pose such a threat to DeLay and his Christian-conservative ilk? These mysterious robed figures who play such an important role in American democracy?

Here in Western Montana, the federal judiciary’s highest-profile representative is U.S. District Court Judge Donald W. Molloy.

By the nature of the federal court, and with 10 national forests in his district, Molloy is in a position to deal with some of the most controversial issues facing the American West. In an average year, Molloy’s court hears upwards of 400 civil and criminal cases, ranging from lawsuits over timber and mining permits to drugs and firearms cases to the ongoing W.R. Grace and Co. debacle.

Not surprisingly, Molloy’s rulings are not always popular.

In a February 2004 article in High Country News, Molloy was described as “one of the greenest judges in the West.” Supporters of logging, mining and off-road recreation would cite that as evidence of Molloy’s activist tendencies.

Just last fall Molloy was blasted by right-wing bloggers on the website for statements he made during the sentencing of Tracy Brockway, a woman tied to the Project 7 paramilitary group that allegedly trained and conspired to kill federal judges.

According to the Flathead valley’s Daily InterLake, during Brockway’s sentencing Molloy said he had given a lot of thought to the circumstances around Project 7 and other anti-government groups and citizens who follow “Rush Limbaugh or the radio stations in Kalispell, screaming people” who are anti-government or intolerant, and “how that leads to folks taking a view of government that somehow is so at odds with reality it surprises me.

“The government is us. It is we, the people,” Molloy told Brockway.

Those statements evidently qualified Molloy as an activist in the eyes of Free Republic bloggers. Posts on the website’s forum ranged from mild criticism of Molloy’s Limbaugh reference to veiled threats of violence.

However, Molloy has made a number of rulings over the years that upset environmentalists, including a ruling last month that strengthened one of the keystones of the Bush administration’s so-called Healthy Forest Initiative. The decision disappointed environmentalists and was praised by the logging industry.

But controversy is nothing new to federal courts. Since their creation, the courts have been at the center of some of the most tumultuous schisms in American history. From the Civil War to civil rights to civil unions, controversy is second nature to judges.

And the U.S. District Court of Montana is part of one of the most controversial courts in the land, the 9th U.S. Circuit Court of Appeals. Only the 9th Circuit, encompassing nine states, two territories, and 14 million square miles, and the Supreme Court have the power to overrule Molloy’s decisions.

It seems natural, then, that when Tom DeLay, without naming names, levies warnings and threats against the federal judiciary, Molloy could be a target.

But when we decided to take a close look at Chief Judge Molloy, we didn’t find what DeLay expected. Rather than anecdotes about how Molloy legislates from the bench, or lets his personal politics drive his interpretation of the law, we found the opposite. By most accounts, Molloy appears to be exactly the kind of judge the framers of the Constitution had in mind when they created an independent judiciary.

Trial lawyers in these parts know that if you plan to appear before Judge Molloy, you’d better be prepared, because he doesn’t tolerate shenanigans. As former Montana Supreme Court Judge Terry Trieweiler put it: “He’s a judge who holds lawyers accountable for more details than they are probably used to.”

Molloy is a big, mustachioed man with a strong resemblance to the stereotypical lawmen of the Old West. He’s imposing at first, nearly to the point of unnerving, but warm and friendly in conversation. He has a steely, almost suspicious gaze, which is often fixed somewhere in the room or on his desk when he talks about the law. Mention his family or Grizzly athletics and he becomes animated, reflective and friendly. So friendly, in fact, it’s easy to forget you’re talking to one of the most powerful men in Montana.

To understand Molloy’s approach to the law, and the way he operates his courtroom, it’s important to understand his personal history and his belief in the legal process. “You must understand his background before you go into his courtroom,” says Missoula attorney William Evan Jones.

Don Molloy grew up in the tiny eastern Montana town of Malta. He is the son of Dr. Daniel T. Molloy, a long-time country doctor and highly decorated WWII bomber pilot. His mother, Mary Rita, has been described by family and friends as a strong, intellectual woman, a voracious reader who took great pride in raising her four sons and four daughters.

After Daniel Molloy finished medical school, the family put down roots in Malta, where sons Dan, Jack, Don and Jim were known as “the Molloy boys.” They were standout athletes in the small town, and all four eventually played college athletics. Don played in the 1964 East-West Shrine game and was a co-captain of the football and basketball teams. In college he was a standout running back for the University of Montana Grizzly football team. Molloy’s four sisters were also exceptional athletes and bright students. All eight Molloy children hold college degrees, and several went on to medical and law schools. Among them, they have a total of 52 years of post-high-school education.

“The Molloys were clearly a family of a lot of smarts and athletic ability,” says long-time acquaintance and trial lawyer Cliff Edwards. “They are quite a family.”

Edwards met Molloy around 1966 at Carroll College in Helena, where Edwards played football with Don’s brothers Dan and Jack. Edwards and Molloy later practiced law together at Anderson, Edwards and Molloy before Molloy took the federal bench.

After finishing his undergraduate studies in political science at UM in 1968, Molloy joined the Navy. He did so despite his reservations about the war in Vietnam.

“[Don], at the time, had serious concerns and objections to the war in Vietnam,” says younger brother Jim. “Yet he served with a strong sense of honor, and is very proud of his service.”

Molloy flew F-4 Phantom fighter planes off the deck of the U.S.S. John F. Kennedy. He crossed the Atlantic Ocean four times and spent most of his Navy years in the Mediterranean Sea. From 1968 to 1973, Molloy served honorably and proudly in the Navy, despite his opposition to the war.

Evidence of his pride in his service is clear to anyone who steps foot in the judge’s chambers. On the east wall, to the left of his desk, are two beautifully detailed paintings of the F-4 Phantoms he once flew. The desk itself he had specially made with a strip of mahogany inlaid diagonally across its surface to represent the deck of the U.S.S. John F. Kennedy.

While serving in the Navy, Molloy wrote a letter to legendary Montana Sen. Mike Mansfield in which he expressed the conflict he felt as a sailor and opponent of the war. Mansfield, one of the most powerful and vocal opponents of U.S. involvement in Vietnam, responded to the young sailor’s concerns.

“Basically it was a letter about citizenship,” recalls Molloy. “He said you do your duty, and you do it well, but you still have the right to question.”

Mansfield told the young sailor that there are aspects of the government that he might not always agree with, but that he is obligated to serve and do his duty to his country.

“That letter has been a constant reminder to me over the years,” Molloy says. “It’s helped me realize how great our country really is. Mostly because if you believe in it, in the obligations of citizenship and serving your country, that doesn’t prohibit you from speaking out.”

Mansfield’s letter, now framed, hangs prominently in Molloy’s home.

Those who know him say Molloy’s military experience is a big part of who he is today.

“Anyone who can land a fighter plane on the runway of the U.S.S. John F. Kennedy in high seas, at night, has a precise mind,” says Missoula liability defense attorney Jones, who has worked as a trial lawyer in Missoula for 46 years.

“Number one, [Molloy] is aggressive. He played football for the University of Montana. Anyone who can do that is going to be aggressive. Secondly, he has a precise mind. He brings to the courtroom an appreciation for detail many judges don’t.”

Molloy didn’t always demonstrate that studiousness and attention to detail. In high school his grades were only average. He didn’t excel in his undergraduate studies early on, either. According to brother Jim, Don’s Navy experience sparked an intellectual interest that wasn’t apparent in his earlier studies.

It wasn’t until he left the service in 1974 to return to the University of Montana School of Law that he began to exhibit his now-famous appetite for knowledge.

One of his law school classmates, Rick Anderson, said fellow law students had Molloy pegged as a future judge even then.

“He was always in the top of the class,” said Anderson. “He truly loves the law and takes a scholarly approach to it.”

He is also a voracious reader—a trait his entire family seems to share. It’s not uncommon for Molloy to invoke Aristotle, Ludwig Wittgenstein or William Shakespeare in conversation. That level of literacy, says former law partner Edwards, often frustrated his partners at Anderson, Edwards and Molloy.

“He would drive me nuts!” Edwards jokes. “He would deliver closing statements to the jury, look the jurors straight in the eye and start talking about St. Thomas Aquinas.”

According to friends and family, Molloy always viewed the federal bench as the epitome of honorable service to the law.

Although he’s never been accused of grooming his career toward a federal judgeship, those close to him say it’s something to which he always aspired.

He started his legal career in 1976 as a law clerk for U.S. District Court Judge James F. Battin.

Some say Battin and Molloy were an odd couple at first: Molloy, a fiery young Irish Democrat working for a former five-term conservative Republican congressman, commonly regarded as a judge of the highest integrity. Molloy says his time clerking for Battin was the best educational experience he could ever have had. Molloy says Battin was a true conservative.

“He believed strongly in states’ rights, in federalism, in fiscal conservatism and individual rights,” says Molloy. “It was a wonderful working relationship.”

It wasn’t an easy job, however. Battin had high expectations of his staff.

“I remember the first day I went in to work,” recalls Molloy. “He called me into his office, we talked for a few minutes, and the he said, ‘Well, we have a lot of work to do.’ And that was it. We got to work.”

Molloy calls Battin, who swore Molloy in as a District Court judge just three months before succumbing to cancer, his mentor and his hero.

By all accounts, Molloy’s experience clerking for Judge Battin played a key role in forming the younger man’s approach to the law.

“He told me something that I’ll never forget,” Molloy recalls. “He said, ‘I won’t tell you how to be a judge, but if you ever get used to sentencing people, if taking liberty becomes easy, get a different job.”

Judging has not turned out to be easy. Not least because, “In high-profile cases with political significance, there are always people, especially Republicans, ready to exploit the decision for their own purpose,” according to Trieweiler. “That has fostered distrust of the judiciary among the public.”

Asked for his thoughts on some of the criticism he’s received for his decisions, Molloy shrugs and says he doesn’t think about it much.

On the other hand, he does believe federal judges are often unfairly characterized in the press.

“I think there are correlations that occur that get confused with cause,” says Molloy. “Just because so-and-so appointed so-and-so, there’s an inference that when [judges] make decisions, it is politically motivated by some mythological platform that all Republicans have…or all Democrats have.

“There is a correlation: they were appointed by someone who has a political platform, but that doesn’t mean a judge shares that platform.”

According to Molloy, all things change once a judge is sworn in. Politics are trumped by law, and judges and their families are asked to make personal sacrifices in the law’s name. That’s another lesson Molloy says he learned from the famously even-handed Battin.

“It’s very difficult when you visit with judges to discern—through conversation of the pressing issues of the country—to tell if that was a Democrat-appointed judge or a Republican-appointed judge,” says Molloy.

Battin was one of President Richard Nixon’s first judicial nominations. Molloy was a Clinton nominee. Polar opposites of the political spectrum (as far as presidents go), and yet Molloy revered Battin. “The purpose of the federal judiciary is to have a court that’s able to make decisions based on the law, without the effect of local bias, political influence or local economic considerations,” says Trieweiler.

The current discourse coming out of Washington has lawyers and judges furious and a bit scared. DeLay’s apparent disregard for the Constitution and his angry rhetoric targeting judges has many legal professionals questioning the future of the system.

“It really disgusts me,” says Trieweiler. “It’s purely politically motivated, as in the Schiavo case. It seemed to distract the country from other, more important issues. Rather than talk about the deficit, inflation, or our involvement in a misguided war, it’s easier to stoke up people’s emotions over an issue where people don’t really understand what’s going on.”

“I think almost all judges try to do their job to the best of his or her ability based on how they perceive legal arguments,” Molloy says.

And he won’t be lured into a political discussion or speculate on the motivations of judicial naysayers.

“I believe in the Constitution. I believe in the separation of powers, in federalism, in individual rights. I think all judges hold those beliefs.”

Despite the fact that Molloy was once a plaintiff’s lawyer, the favorite whipping boys of Republican politicians, defense attorneys today describe him as consistent, principled and fair.

“[Molloy] goes out of his way to walk down the middle of the road,” says Jones, who, as a defense attorney, represents large corporations—the same kinds of corporations Molloy’s former clients sued. “At the same time, he understands plaintiffs’ cases and plaintiff theory better than an ordinary judge.”

Molloy had a successful practice before becoming a judge. He certainly could have made more money in private practice than he does serving on the bench (U.S. District Court judges made $158,100 in 2004, and make $162,100 in 2005). Being a federal judge is hardly glamorous, and it requires personal sacrifice beyond the financial. For instance, Molloy says he misses the friendships he had before becoming a judge.

“It’s not like I’m a hermit. I have friends. It’s just that now those friendship are different,” he says.

Molloy says he can no longer engage in conversations about the issues of the day like he once did. Committing to the bench is in many ways committing to a monastic lifestyle. His wife, once active in politics, is now careful about choosing her volunteer activities. His children have had classmates whose parents Molloy has had to sentence. And Molloy himself, unlike DeLay, must go out of his way to avoid any appearance of impropriety.

Because judges are under constant scrutiny from varying factions, including certain members of Congress, Molloy says he has chosen to sacrifice some relationships and activities that could be construed by critics as improper. That can be tough, but to Molloy the sacrifice is worth it. “I can only speak for myself, but I think the principle motivation [for being a judge] is public service,” Molloy says. Molloy is also a firm believer in and advocate of the concept of jury trial. He believes jurors do the real business of the people, and he believes they do it well.

“[Jurors] are judges of fact; I’m glad we have them,” he says. “They deal with difficult issues of innocence and guilt and all kinds of things. They are the judges of those facts, and they have a good sense of what’s right.

“One of the greatest things about America is that no matter what kind of view any one of us holds, there’s a balance…it kind of comes out the way it’s supposed to be in the end,” says Molloy.

Let’s hope he’s right. Some legal professionals aren’t as optimistic when it comes to the current threat against the judiciary.

“It has me very worried,” says Trieweiler. “I’m worried about the fact that the party that has control of the executive branch and both houses of Congress—and has now appointed the majority of the federal judiciary—is going to appoint as many extremist right-wing judges as it can. I’m worried about the demagoguery I see every day affecting public attitudes in a way that makes it easier to do what they want.”

Trial lawyer Edwards says if former Republican Congressman and Molloy mentor Battin were alive today, he would be furious at the way his party is treating the judiciary.

“This is very shortsighted of DeLay and the Republicans,” Edwards says. “There will be a time when Republicans and their ilk won’t be in power.”

All Molloy will say publicly on the subject is that judges were given lifetime tenure so that they would not be swayed by such rhetoric.

“The founding fathers were brilliant. That is why, in their wisdom, they created lifetime appointments for judges. It is critical to the survival of democracy. The principle problem with the king is that if he didn’t like a decision, he’d get rid of the judge,” says Molloy.

“Our judicial system, whether state or federal, is universally recognized as the crown jewel of our democracy. It is the envy of aspiring nations. It is recognized throughout the world as an incredible institution,” he says.

That may be, but the fact remains that there’s a vocal and powerful faction inside the U.S. government that would like to see the institution brought to its knees.

Former Supreme Court Justice Robert H. Jackson once suggested that conflict among the branches of the federal government is “ready to break out again whenever the provocation becomes sufficient.”

Such conflict has been inflamed before: with desegregation as the catalyst in the 1960s, Roe v. Wade in the 1970s and Bush v. Gore in this decade. In each instance, the courts have survived intact. But never before has the attack been so focused, and backed by such prominent members of the federal government.

This country was founded as a democracy, with three independent branches of government, but if Tom DeLay and his supporters are successful in foisting their Christian-conservative agenda upon the legal process, the danger of transformation into a theocracy is real. If that happens, then judges like Don Molloy, who answer to the law instead of Tom DeLay, might well become a thing of the history books.

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