Dispatches from the Creation Wars

More on Judge Birch’s Bold Example

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.


  1. #1 raj
    March 31, 2005

    I agree with this post 100%, but merely want to point out that, in more than a few states the members of the judiciary are nothing more than elected politicians. I know that’s the case in Ohio, and I believe it’s the case in Michigan. California has a modified version of that, whereby judges can be “recalled” by the electorate. We here in Massachusetts are spared much of that.

    Quite frankly, Judge Greer, the elected Republican (and Southern Baptist) FL state court judge who presided over the Schiavo case, showed remarkable bravery throughout what must have been a terrible ordeal for him. It would be unfortunate if voters were to turn him out at the next election, but I wouldn’t put it past them.

  2. #2 raj
    March 31, 2005

    Missed an HTML tag

  3. #3 David S
    April 1, 2005

    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.

    Ed – Good points. Another way to look at it is that the religious right has a different notion of ‘justice’ and from their point of view things make sense [sort of].

    Many people see the judiciary as a way to adjudicate disputes among people. It is assumed that good people can differ, and that a fair and impartial judge can adjudicate their differences in accordance with the laws of the community. The law then comes from social agreement. It is how we make our society work. Hence we rely on the impartiality of judges. The highest good then is justice and fairness.

    The religious right seems to hold to a notion that judges are meant to judge between right and wrong, holding to an unambiguous higher standard. The purpose of the law is to direct us how to behave. Thus the highest good is obedience.

    With such a world view it is possible to see how one could get upset about the role of the judiciary in our current system. In this world view there are no valid differences of opinion, and to admit to any validity of an opposing point of view would be to be disobedient to the law of god.

    Here we have indeed a clash of cultures. The view of the religious right, however, with its emphasis on authoritarianism really doesn’t work. We understand so much better now what motivates people, how respect and mutual encouragement can work to benefit all people. We have learned how to respect and treasure our differences, and to see ‘god’ in ‘the other’. The contemporary liberal world view in its best expressions, Martin Luther King, Dag Hammarskold, the Dalai Lama, Oscar Romero really is far more genuinely religious and more effective.

    The question then is how to find common ground and help our conservative brothers and sisters discover a larger, more encompassing, more flexible and more generous view of life. Perhaps being compassionate is a start. [And avoiding a holier than thou attitude ourselves.]

    These ideas are roughly stated and not fully thought out, but I think they are worth exploring more.

    David S

  4. #4 raj
    April 1, 2005

    Many people see the judiciary as a way to adjudicate disputes among people.

    Just to point out, that is precisely what “judicial power” (reference US Constitution, Article III) refers to: the adjudication of disputes among people. “Legislative power” (reference Article I) refers to the establishment of laws of general applicability, and “executive power” (article II) refers to carrying out–executing–the laws.

  5. #5 Matthew
    April 3, 2005

    I think this also speaks highly about law schools. These judges have developed a respect for the rule of law, and have shown they are not willing to sacrifice consistency to satisfy their ideological beliefs. They could easily do so, as politicians always do, and how intellectuals in other fields often do as well, but I believe the schools have done a good job of creating the respect for law that is necessary for good judiciary.

  6. #6 Enigma
    April 4, 2005


    Correct me if i’m wrong, but wasn’t an autopsy ordered by Michael and the parents?