Dispatches from the Creation Wars

War on the Judiciary, Take 3

Posted by Ed Brayton on April 8, 2005
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I don’t think this prediction is worth claiming the mantle of Nostrodamus or anything, but just a few days ago I predicted that Tom Delay, with his public standing taking a beating from numerous ethics violations, will become increasingly shrill in pandering to the far right. And here we have a report of his appearance, on videotape, at a conference called “Confronting the Judicial War on Faith” in Washington, wherein he ups the ante even further in the right’s war on the judiciary:


Mr. DeLay faulted courts for what he said was their invention of rights to abortion and prohibitions on school prayer, saying courts had ignored the intent of Congress and improperly cited international standards and precedents. “These are not examples of a mature society,” he said, “but of a judiciary run amok.”

“The failure is to a great degree Congress’s,” Mr. DeLay said. “The response of the legislative branch has mostly been to complain. There is another way, ladies and gentlemen, and that is to reassert our constitutional authority over the courts.”…

Mr. DeLay criticized Congress as failing to act vigorously enough. “I believe the judiciary branch of our government has overstepped its authority on countless occasions, overturning and in some cases just ignoring the legitimate will of the people,” he said. “Legislatures for too long have in effect washed our hands on controversial issues from abortion to religious expression to racial prejudice, leaving them to judges who we then excoriate for legislating from the bench. This era of constitutional cowardice must end.”

Mr. DeLay alluded to Congressional authority to “set the parameters” of courts’ jurisdictions and its obligation “to make sure the judges administer their responsibilities.”

The organizers of the conference and Congressional staff members who spoke there called for several specific steps: impeaching judges deemed to have ignored the will of Congress or to have followed foreign laws; passing bills to remove court jurisdiction from certain social issues or the place of God in public life; changing Senate rules that allow the Democratic minority to filibuster Mr. Bush’s appeals court nominees; and using Congress’s authority over court budgets to punish judges whom it considers to have overstepped their authority.

“I am in favor of impeachment,” Michael Schwartz, chief of staff to Senator Tom Coburn, Republican of Oklahoma, said in a panel discussion on abortion, suggesting “mass impeachment” might be needed.

I’ve got a better idea. How about we impeach those in Congress who don’t understand the Constitution, or don’t care what it says? Sorry, Mr. Delay, but Congress doesn’t have “constitutional authority over the courts”. In fact, the Constitution gives very limited authority to Congress where the courts are concerned. Congress is given the power to create courts below the Supreme Court as the need arises, obviously to accomodate changes in population, caseload, and so forth. The only real checks the Congress has over the Supreme Court are the power to confirm judges and the power to impeach. And of course, the power to initiate constitutional amendments. And it’s interesting that he notes the ban on mandatory school prayer as an example of the “judiciary run amok”. If government mandated prayer is not an establishment of religion, then what on earth would be? And the invocation of the “legitimate will of the people” is quite amusing given that Delay just pushed through a constitutionally dubious law in the Schiavo case that the “will of the people” is clearly against according to polls all across the nation – including within his own very conservative district. Thankfully some genuine conservatives, as opposed to conservatives-of-convenience like Delay, see through this ruse:

Judges, including Chief Justice William H. Rehnquist and one member of the federal appeals court who heard the Schiavo case, have already been sharply critical of Congressional efforts to interfere with their authority as a violation of the Constitution’s separation of powers. In a recent report, Chief Justice Rehnquist called one such measure “unwarranted and ill-considered” and said “a judge’s judicial acts may not serve as a basis for impeachment.”

I think it’s time to put a stop to such unconstitutional legislative activism on the part of an increasingly arrogant Congress.

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Comments

  1. #1 spyder
    April 8, 2005

    I watched this moment live yesterday on CSPAN. It was vile and nefarious. His pinched features reminded me of a diseased ferret struggling to catch just one more prairie dog before it succumbs. The desperation of the CCRR (corporate conservative religious right) to hold whatever shreds of power they attained and manifest an agenda, is becoming all too clear. It needs to be remembered, that on page 78 or so of the Republican Party platform for 2004, there are three paragraphs calling for the removal of “activist judges” and the appointment of ones that uphold the virtues of the constitution. I quote:
    Supporting Judges Who Uphold the Law:

    In the federal courts, scores of judges with activist backgrounds in the hard-left now have lifetime tenure. Recent events have made it clear that these judges threaten America’s dearest institutions and our very way of life. In some states, activist judges are redefining the institution of marriage. The Pledge of Allegiance has already been invalidated by the courts once, and the Supreme Court’s ruling has left the Pledge in danger of being struck down again – not because the American people have rejected it and the values that it embodies, but because a handful of activist judges threaten to
    overturn commonsense and tradition. And while the vast majority of Americans support a ban on partial birth abortion, this brutal and violent practice will likely continue by judicial fiat. We believe that the self-proclaimed supremacy of these judicial activists is
    antithetical to the democratic ideals on which our nation was founded. President Bush has established a solid record of nominating only judges who have demonstrated respect for the Constitution and the democratic processes of our republic, and Republicans in the Senate have strongly supported those nominees.

    We call upon obstructionist Democrats in the Senate to abandon their unprecedented and highly irresponsible filibuster of President Bush’s highly qualified judicial nominees, and to allow the Republican Party to restore respect for the law to America’s courts. The sound principle of judicial review has turned into an intolerable presumption of judicial supremacy. A Republican Congress, working with a Republican president, will
    restore the separation of powers and re-establish a government of law.

    There are different ways to achieve that goal, such as using Article III of the Constitution to limit federal court jurisdiction; for example, in instances where judges are abusing their power by banning the use of “under God” in the Pledge of Allegiance or prohibiting depictions of the Ten Commandments, and potential actions invalidating the Defense of Marriage Act (DOMA). Additionally, we condemn judicial activists and their unwarranted and unconstitutional restrictions on the free exercise of religion in the public square.

  2. #2 Donny
    April 8, 2005

    I assume that DeLay and his allies are relying on Section 2 of Article III, which, because of its ambiguous phrasing, can be read as authorizing the Congress to render the Supreme Court powerless by stripping it of all appellate jurisdiction. I cannot believe that the framers had this in mind. I would think that the proper reading is that the Congress may expand the Supreme Court’s original (trial) jurisdiction to categories of cases in addition to those specified. I’m not sure that Congress has any power to limit the jurisdiction of the judicial branch. Without a trial court of plenary jurisdiction, much of Article III makes no sense. I’d love to hear from more knowledgeable people on this point.

  3. #3 Chris Krolczyk
    April 8, 2005

    Hmmmm. Let’s see how this counts on the 2005 Scale of Political Wackjobbery:

    The organizers of the conference and Congressional staff members who spoke there called for several specific steps: impeaching judges deemed to have ignored the will of
    Congress

    Threatening the court’s ability to engage in judicial review in the name of demagoguery;

    or to have followed foreign laws;

    Nativism;

    passing bills to remove court jurisdiction from certain social issues or the place of God in public life;

    Crushing the Establishment Clause of the First Amendment to a fine powder on behalf of fundamentalist Christian pressure groups;

    changing Senate rules that allow the Democratic minority to filibuster Mr. Bush’s appeals court nominees;

    I’m sure Republicans have never done
    this to Democratic nominees, no sirree Bob;

    and using Congress’s authority over court budgets to punish judges whom it considers to have overstepped their authority.

    And threatening judges with defunding their court budgets if they don’t play ball.

    Overall, I give it a 9.

    Run for your lives.

  4. #4 Troy Britain
    April 8, 2005

    I’ve got a better idea. How about we impeach those in Congress who don’t understand the Constitution, or don’t care what it says?

    Hear, hear! Impeach the treasonous S.O.B..

    He took an oath to “…support and defend the constitution of the United States against all enemies, foreign and domestic…” and to “…bear true faith and allegiance to the same…”

    Clearly he (and many of his “conservative” cohorts) has become one of the domestic enemies mentioned therein. I’m getting sick and tired of the un-American bullshit that many of these so called conservatives have been spewing lately about the judiciary, and I think we should not mince words and call it what it is, treasonous and un-American.

  5. #5 Donny
    April 8, 2005

    I would really like to hear some serious constitutional scholars address the wingnut critique of the federal judiciary. I think they’re wrong, but I’m just a practicing attorney, not a law professor. Ed? Am I on the right track?

  6. #6 Bill Ware
    April 14, 2005

    I see DeLay has “apologized” here.