CBS legal analyst Andrew Cohen lauds the example of Judge Birch and his brave stand for consistency yesterday. The more I think about it, the more remarkable it is. Judge Birch was essentially ending any possibility of being nominated to the Supreme Court (you don’t win nominations by accusing both the White House and the Congres of brazenly flouting the Constitution for political gain), and he had been mentioned by many as a potential nominee because of his solidly conservative views and reputation. Cohen gets it right, in my view:
In the end, in my opinion, the only true unvarnished hero in the recent “legal” phase of the Terri Schiavo saga is 11th U.S. Circuit Court of Appeals Judge Stanley F. Birch, Jr. He is truly a profile in courage.
After his “special concurrence” in the Schiavo case Wednesday, Judge Birch is a hero to all of us who believe that the courts can rise and stay above cheap politics – and that the hypocrisy and demagoguery and self-interest that fuels the other two branches of government still can be neutralized when it comes into our courts of law.
He is a hero to all of us who hoped during the past fortnight of argument and appeals that the federal courts would determine this case in a nonpartisan, non-ideological way. He is a hero to all of us who wanted the courts to beat back this brazen power-grab by the other two branches.
I think this is the root of my longstanding fascination with the courts and respect for the judiciary. First, it’s the only place for intellectuals in government. It is virtually impossible to survive as a genuine intellectual in electoral politics, and the few examples of such stand out precisely because they are so few. No politician in electoral politics can care about things like intellectual consistency or honesty, or about whether their expressed views fit together coherently. When it is politically expedient to do so, every politician can easily pull off the temporary flip flop, and manage to keep a straight face while explaining that it isn’t a flip flop at all. Electoral politics is an ecosystem which favors, by natural selection, those who are most talented at pulling off this maneuver. As Mencken wrote in 1918:
The men the American people admire most extravagantly are the most daring liars; the men they detest most violently are those who try to tell them the truth. A Galileo could no more be elected President of the United States than he could be elected Pope of Rome. Both high posts are reserved for men favored by God with an extraordinary genius for swathing the bitter facts of life in bandages of soft illusion.
But judges, at least at the federal level, are given tenure for life. They are protected from the need to pander to constituencies and fundraisers, and thus at least partially immune to the waxing and waning of public opinion. That makes them easy targets for demagogues, particularly on the right today, to whip up the mob into a lather over those “unelected judges” trampling the “will of the people” when those judges demand that the actions of the government be consistent with Constitutional principle. But that is precisely why, on the whole, I trust judges more than I trust elected politicians.
The right’s wholesale attack on the independence of the judiciary over the last 20 years – from attempts to strip the courts of jurisdiction in cases where they have ruled against the legislature’s wishes to the outright demagoguery tha we hear so consistently from some quarters – is profoundly disturbing, and absolutely contrary to Constitutional principle. As Hamilton explained in Federalist 78:
This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Though I trust the friends of the proposed Constitution will never concur with its enemies,3 in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body.
That is indeed what the battle over “judicial activism” is really all about. It’s a sustained attack on the independence of the judiciary undertaken because the judiciary is such an easy target for elected politicians to take aim at. It’s a power grab by the legislature, which doesn’t like to be told no, which is precisely what the courts were invented to do. We owe Judge Birch a great thanks for reminding us of that once again.