Dangerous Business

(Note: remember this blog now has a new home at: Against the Madness.)

One of the most under-reported stories to emerge from the last week is the gathering Republican assault on the court system.

For several years now, we have heard a building drumbeat from the right over what they call 'activist judges'. The numerous legal challenges and the contentious social issues in the Terri Schiavo case gave these people a platform to increase their rhetoric on these points and the indicators are that they will be attempting to weaken the judiciary in the upcoming months.

Not content to control the Executive and Legislative branches, they now have their sights set on the judiciary. As I mentioned in an earlier post, "Without DeLay", the House Majority Leader made some not-so-veiled threats against the judges who ruled in the Schiavo case, especially those who ruled on the emergency law passed to give the Federal courts jurisdiction in that case.

DeLay's comments were so irresponsible and inflammatory that they could easily lead to violence against these judges. We have been inundated with the irrational, anti-scientific, emotional reactions to this case. A combination of TV cameras and fanatical religious rhetoric tend to draw some less than stable people to the forefront. Some of these could easily interpret DeLay's remarks as a call to action. Yesterday, Senator Frank Lautenberg of N.J. sent a letter to DeLay calling DeLay's remarks "reckless", "irresponsible" and "downright dangerous", especially in the context of two recent violent attacks on judges. Unfortunately, this vein of inflammatory and highly irresponsible rhetoric about the judiciary has not been limited to DeLay. James Dobson, of Focus on the Family, said that the judges in the Schiavo case were "guilty not only of judicial malfeasance - but of the cold-blooded, cold-hearted extermination of an innocent human life."

Meanwhile, DeLay says he wants Congress to "look at an arrogant, out-of-control, unaccountable judiciary that thumbed their nose at Congress and the president." This goes to the real agenda of these people. In an interview with NPR last Saturday, Representative Steve King hypothesized on what actions Congress could take based on his interpretation of their power. "If we wanted to abolish the 9th Circuit, for example, we could do that. " said King. ". . . whatever Congress gives, they can take away." King also stated that "We could also cut the budget. We could prohibit the Justice Department from enforcing the orders of the court." While the Representative claimed that these actions were "not my preferred method" he said that the courts were ". . . counterproductive to this country and if we’re going to preserve our Constitution, we must get them in line."

One thing that belies all the conservative concern over "activist judges" is the actual judges involved. Many of the judges involved in the Schiavo case, especially in recent weeks, have been at least Republican appointees if not conservatives in their own right. Judge Greer, who did the lions share of the work in recent months is a conservative and Southern Baptist. Nevertheless, as a result of death threats stemming from the case, he is under the protection of Federal Marshals. In all, nearly 50 judges have looked at this case throughout the years and issued remarkably similar findings. The Daily Kos has a post detailing almost all of these and links to biography information for many. Recently, Judge Stanley Birch, of the Eleventh Circuit blasted both Bush and congress in a written opinion. Birch, a Bush I appointee is widely considered to be one of the most conservative judges on the federal bench. In his opinion, Birch accused both congress and Bush of acting "in a manner demonstrably at odds with our Founding Fathers' blueprint for governance of a free people - our Constitution." Birch's entire opinion, which is available on line, goes on to detail a number of ways in which the special legislation passed on Easter weekend is unconstitutional. He cites precedents for separation of powers that date to Marbury v. Madison in 1803 in which it is stated that this one of a number of principles upon which "the whole American fabric has been erected."

All of this really revolves around a few simple ideas. The purpose of the courts is to interpret the laws in each case and ultimately to determine whether those laws are constitutional and thus instruct the Executive Branch on what laws it can enforce. One essential of a civilization is an agreement, amongst the people being governed, to honor some authority as the final word on disputes. For hundreds of years, the courts have been the system for attaining that final word. That system, and our faith in it, has provided a relatively stable framework for the rest of American life to rest upon. If we undermine either authority of our court system, or the dominant perception of it's impartiality, we risk having no final arbiter of disputes. That will lead to chaos.

We cannot allow any majority to overrun the courts merely because they disagree with the outcome of particular cases. We cannot allow power-mad thugs like DeLay, King and Bush to play fast and loose with the very underpinnings of our society for their own political and economic gain. True conservatives, as opposed to political hacks, should and do agree with us on this one.

Nothing good can come of this!