Dispatches from the Creation Wars

War on the Judiciary, Take 4

The rhetoric coming from some portions of the right concerning the judiciary continues to grow ever more vitriolic and unbalanced. Ruth Marcus has an interesting piece in the Washington Post today that includes some comments that are constitutionally dubious at best and downright delusional at worst:

At the same time, there is reason to fear that something has changed in the national climate when the chief of staff to a U.S. senator — even if that senator is Tom Coburn of Oklahoma — tells a public gathering, “I’m in favor of mass impeachment if that’s what it takes.” An “easier way,” the aide, Michael Schwartz, said at last week’s conference, would be to oust activist judges for bad behavior. “Then the judge’s term has simply come to an end. The president gives them a call and says, ‘Clean out your desk, the Capitol Police will be in to help you find your way home.’ ”

Schwartz went on to provide a helpful, if not exhaustive list, of which judges he had in mind, including the majority of the Supreme Court: “It is tenure for life as long as you behave well . . . as I know that Justice Kennedy and Justice Souter and Justice Breyer and Justice Ginsburg and the rest of that crowd have not done.”

Schwartz may be a particularly extreme example, but he’s not the only one. “There does seem to be this misunderstanding out there that our system was created with a completely independent judiciary,” the spokesman for the House Judiciary Committee chairman, F. James Sensenbrenner (R-Wis.), told the New York Times. Rep. Steve King (R-Iowa) has threatened to cut off court funding. “When their budget starts to dry up, we’ll get their attention,” he said. “If we’re going to preserve our Constitution, we must get them in line.”

The article didn’t mention Rep. King’s most insane comment. In the NPR interview quoted above, King not only suggested that Congress cut the budgets of the courts (and never mind that this would end up depriving American citizens of their right to have their day in court on any number of mattes) but even said, “We could prohibit the Justice Department from enforcing the orders of the court.” And I would suggest that the spokesman for Rep. Sensenbrenner read the Federalist Papers, particularly #78. He will find not only was the Constitution designed to create an independent judiciary, it was defended with precisely the same words that he claims are a “misconception” and was considered the primary defense of Constitutional limitations:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

What is particularly crazy about the whole thing is that this rhetoric is being aimed at what is a far more conservative court than we have had in the last half century. The bulk of the Federal judges in place right now were appointed to the bench by Republican presidents and the Rehnquist court is considerably more conservative than either the Burger court or the Warren court. In all the inflated rhetoric about judges “ignoring the clear intent of Congress” in the Schiavo case, the only judge it could be explicitly aimed at is Judge Stanley Birch, who is the epitome of the kind of non-activist, strictly textualist judge that these same people have for years pretended to want to put on the bench.

The Marcus article also points out that the risk of all of this extremist nonsense turning from rhetoric into action may be lower after the Terri Schiavo case. After Tom Delay and Jon Cornyn ramped up the rhetoric in the last week, Dick Cheney and Bill Frist were quick to jump on them for those comments. And with public opinion polls showing that even most Republicans thought that the courts were right and that Congress should have stayed out of it, the moderates in the Senate are going to be even less likely than before to support the “nuclear option” on filibusters out of fear of being associated with the extremists. This is a good thing, of course. Meanwhile, Barney Frank hits the nail right on the head concerning Congressional intervention in the Schiavo case in the Boston Globe:

[T]he distinction between the judicial and legislative functions must be maintained. On March 27, Congress did not legislate. We constituted ourselves as an ad hoc super court, cancelled the lengthy, careful judicial deliberations of the entire court system of Florida, and sent the case to a federal District Court with very specific instructions about how to proceed in deciding it. Members of Congress brought to that decision our ideologies, our concern for reelection, our interests in advancing our parties’ political positions, and our need to maintain good relationships with our political leaderships and colleagues — elements that should have had no place in this decision. Future legislative efforts must remember that if we do not wish decisions to be made on a political basis, we should not ask 536 politicians to make them.

Hear, hear.

Update:Oi vey, I hadn’t even seen some of the crazier people speaking at this recent conference on the “judicial war on faith.” The Washington Post reports on Friday:

Conservative leaders meeting in Washington yesterday for a discussion of “Remedies to Judicial Tyranny” decided that Kennedy, a Ronald Reagan appointee, should be impeached, or worse.

Phyllis Schlafly, doyenne of American conservatism, said Kennedy’s opinion forbidding capital punishment for juveniles “is a good ground of impeachment.” To cheers and applause from those gathered at a downtown Marriott for a conference on “Confronting the Judicial War on Faith,” Schlafly said that Kennedy had not met the “good behavior” requirement for office and that “Congress ought to talk about impeachment.”

Next, Michael P. Farris, chairman of the Home School Legal Defense Association, said Kennedy “should be the poster boy for impeachment” for citing international norms in his opinions. “If our congressmen and senators do not have the courage to impeach and remove from office Justice Kennedy, they ought to be impeached as well.”

Not to be outdone, lawyer-author Edwin Vieira told the gathering that Kennedy should be impeached because his philosophy, evidenced in his opinion striking down an anti-sodomy statute, “upholds Marxist, Leninist, satanic principles drawn from foreign law.”

Ominously, Vieira continued by saying his “bottom line” for dealing with the Supreme Court comes from Joseph Stalin. “He had a slogan, and it worked very well for him, whenever he ran into difficulty: ‘no man, no problem,'” Vieira said.

The full Stalin quote, for those who don’t recognize it, is “Death solves all problems: no man, no problem.”

Holy crap, have these people lost their minds completely?


  1. #1 SharonB
    April 11, 2005

    This war on the judiciary is getting even nastier.
    Read this link from the Washington Post (via theocracy watch) http://theocracywatch.org/justice_kennedy_post_apr9_05.htm for a revelation on just how low the RR and social conservatives can go. It’s tantamount to calling for the assassination of judges!

  2. #2 spyder
    April 11, 2005

    Over the weekend i engaged in a thought problem, trying to envision just what sort of country this would be if these people actually were capable of doing what they claim they want done. Such extreme measures would require some fairly substantial involvement of US military and private security forces, probably engaged in battles against one another. These would leave local law enforcement agencies struggling to decide whom they should protect versus to whom they should surrender. At some peak point the realization that the 20% or so of the population who favor this one theocratic impostion represent a distinct minority, and the majority, who would favor more democratic processes and judges who are free from tethers to fundamentalist or evangelical churches, would rise up and begin a very messy wholesale slaughter. It is truly insane.

  3. #3 Ed Brayton
    April 11, 2005

    Oh geez, I just saw that article referenced on the ACS blog and updated my post to include some of those crazy statements.

  4. #4 Chris Krolczyk
    April 11, 2005


    Holy crap, have these people lost their minds completely?


    Did anybody bother to tell these buffoons that impeachment of a Supreme Court justice has to based on something just a tad more significant than one ruling they didn’t happen to like?

    It’s also nice to know that that shrivelled excuse for an intellect known as Phyllis Schlafly threw in her two cents’ worth as well. Harlan Ellison once called her “Phyllis Shitfly”; the nickname seems just as appropriate now as it did back then.

  5. #5 Chris Krolczyk
    April 11, 2005

    Speaking of further proof that the “lost their minds” theory is more than a meme, here’s an interesting paragraph from that Post article:

    Not to be outdone, lawyer-author Edwin Vieira told the gathering that Kennedy should be impeached because his philosophy, evidenced in his opinion striking down an anti-sodomy statute, “upholds Marxist, Leninist, satanic principles drawn from foreign law.”

    “Marxist, Leninist, satanic principles drawn from foreign law”?

    What the f*ck?

  6. #6 Troy Britain
    April 11, 2005

    Holy crap, have these people lost their minds completely?

    These “conservatives” are quoting, with approval, Joseph, F-ing , Stalin for crying out loud.

    So yes, they’re not only treasonous and un-American but totally insane as well.

  7. #7 Matthew
    April 11, 2005

    I think this attempted republican mad power-grab can be compared to what happened with the Federalists after they gained all political power after the XYZ affair. The difference is that the republicans here are just talking about this stuff, the federalists actually went out and did it. It seems that, thus far at least, the crazy talk is taking place in the media, and not on floor of congress. The loud ones are the ones with these ideas, but the majority are not on their side, as even far-right Dick Cheaney is against this judicial stripping nonsense.

  8. #8 carpundit
    April 12, 2005

    You have got to stop being surprised by that sort of thing. In 21st century America, hypocrisy is an empty word.

    We have grown so tired of political rhetoric that only the loudest of it gets through anymore. We have grown so tolerant of loud debate that any opinion short of violence is a reasoned one. We have grown so used to there being two sides to every issue that any opinion is valid as long as someone says something on the other side.

  9. #9 Mark Paris
    April 12, 2005

    Irony, a lost talent for so many, but not for the righwing nuts. Or is it really irony if they don’t know they’re doing it?

    At least they are consistent. They want to take away the independence of the judicial and executive branchs: “We could prohibit the Justice Department from enforcing the orders of the court.”

  10. #10 spyder
    April 12, 2005

    Maybe the following is part of the “problem with international law” to which the reckless right Senators and Representatives were referring:

    The detainees appeared last year before military tribunals which, after quick reviews, confirmed their status as ”enemy combatants” who could be held indefinitely.

    Omar Rajab Amin, a Kuwaiti who graduated from the University of Nebraska in 1992, wanted to see the evidence. The ”tribunal president,” the de facto judge for the proceeding, replied that he could review only unclassified evidence.

    ”You are not the master of the Earth, Sir,” Saifullah Paracha, a Pakistani businessman, told a tribunal president.

    Feroz Ali Abbasi was ejected from his September hearing because he repeatedly challenged the legality of his detention.

    ”I have the right to speak,” Abbasi said.

    ”No, you don’t,” the tribunal president replied.

    ”I don’t care about international law,” the tribunal president told Abbasi just before he was taken from the room. ”I don’t want to hear the words ‘international law’ again. We are not concerned with international law.”

    The tribunal found Abbasi to have been ”deeply involved” in Al Qaeda, yet four months later the government released him, saying his home country of Great Britain would keep an eye on him.

    The Guantanamo Bay detainees come from about 40 countries and were picked up mainly in Afghanistan and Pakistan following the Sept. 11, 2001, attacks, designated enemy combatants by the Bush administration.

    In a landmark decision, the Supreme Court ruled last June that the detainees may challenge their imprisonment. The Pentagon hastily responded nine days later, creating the tribunals and pushing through reviews of everyone at Guantanamo by year end.

  11. #11 Melody
    April 14, 2005

    I hate sounding like a conspiracy theorist or a cynic, but I can’t help but feel like all of this is more political grandstanding than anything else. I think DeLay and others are doing their best to deflect the impending fury when their shenanagans catch up with them.

    There is only one outcome of such widepsread factious behavior on the Hill… the proverbial sh** is about to hit the fan, and it will land on the sources! maybe then, the People will have their eyes opened…

    Ultimately, only the People can change the course we are on. We just have to choose what types of sh** we want flying in the future!

    “There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.

    It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires.” –Federalist Paper #10

    In light of this, we can see which choice DeLay et al are making…

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