Dispatches from the Creation Wars

Rhetorical bombs thrown at courts and judges are a common theme on the right and have been for quite some time. Any judge who rules against them is branded an “activist judge” seeking to impose “judicial tyranny”. We hear constant screeds against “unelected judges” who “subvert the will of the people” (curiously, and tellingly, they were dead silent when the courts struck down California’s medical marijuana law, passed by popular referendum, or when they struck down Oregon’s assisted suicide law, passed twice by popular referendum).

Religious right groups have held conferences to do nothing but complain about judges. Pat Robertson openly prays that God will strike down Supreme Court justices. Many prominent conservatives have called for investigations and impeachment for judges who decide cases in a way they object to. One Republican Senator, himself a former judge, even suggested that there was a link between “judicial activism” and a brief rash of courtroom shootings – as if, to quote Charles Krauthammer, “courtroom gunmen are disappointed scholars who kill in the name of Borkian originalism.”

Tom DeLay, before leaving office in disgrace, thundered that judges who dared vote in ways he disapproves of would “answer for their behavior” and threatened to cut off funding to the courts (this was right after DeLay called “incredibly outrageous” the fact that Justice Kennedy said that he often did research on the internet – DeLay being too ignorant to know that Westlaw and Lexis, the two primary legal research services, are both on the internet). Tony Perkins of the Family Research Council, called the courts the greatest threat to America, “greater than terrorist groups.”

At one such conference last April, a litany of religious right leaders called for the impeachment of Justice Kennedy (a Reagan appointee, for crying out loud) and one went so far as to accuse Kennedy of upholding “Marxist, Leninist, satanic principles drawn from foreign law.” But where does such rhetoric ultimately lead? To a constitutional crisis if and when an administration drunk on power decides that it can simply ignore a Supreme Court ruling and do what it wants.

It has been building toward this for quite a while. It started with Roy Moore claiming the right to ignore a Federal court ruling that his ten commandments monument had to be removed from the courtroom. And while that may have been too much even for most of his fellow conservatives, even folks like William Pryor, the chorus for such nullification of judicial acts has been growing. In an interview with NPR last year, a Republican congressman, Steve King of Iowa, said:

Congress created all of the courts; all the federal courts, Congress grants them jurisdiction. So whatever Congress gives, they can take away. If we wanted to abolish the 9th Circuit, for example, we could do that. Now I’m not going to say I think that’s the prudent thing to do. We could also cut the budget. We could prohibit the Justice Department from enforcing the orders of the court.

And now we have this interview at The American View, a loony religious right page tied to the Constitution Party, with Jim Gilchrist, head of the Minuteman Project. And when the subject turns to abortion, here’s what he had to say:

Q: The truth hurts, doesn’t it? Now, how do you, Jim Gilchrist, view the Roe v. Wade decision?

A: It never should have happened.

Q: Is it law?

A: It’s a court precedent, and I don’t look at it as law, other than it’s a benchmark that the pro-abortionists use to say, hey, this is okay, I’m not doing anything wrong. Mind your own business and go away. Well, lady, this is like the seventh abortion you’ve had in the last four years! Yea, but it’s my body and Roe v. Wade says it’s legal so leave me alone. You’re kind of dealing with a mental illness mentality, and a very selfish mentality and a very irresponsible mentality and you can’t beat ‘em to death on it. It doesn’t mean that you have to tolerate them, but we do anyway, but the best way is to try to convince them and put some guilt into their conscience so maybe they can look at the issue in a different way. Roe v. Wade is nothing but a court decision. To me it’s not rule of law, but a judge looks at it another way and I guess considers it rule of law.

Q: What do you think South Dakota should do if the U.S. Supreme Court strikes down their anti-abortion law?

A: Now, my conscience says that they should ignore it, but, here I am preaching the rule of law, then if we have immigration laws, then what business does the Catholic Church have, and other religious orders have in telling their parishioners to violate that law? Where do I go here? This is, but then I could split it this way – we’re talking about life rather than someone trespassing – over our international borders. Now I think that with that argument, I could make a valid argument, that is saying this law should not be respected because what law would order a society to kill people? Yeah, I would feel comfortable with that. I would feel comfortable with that, so I would say, yeah, just ignore the law.

Q: So South Dakota should just ignore the Supreme Court?

A: Yes, I would tell them to defy any legislation or any ruling against their decision (anti-abortion law) because the argument is – look, we’re ruling for life. We’re talking about human life here. We’re not talking about an immigration issue, or burglary issue. We’re talking about human life here, and with that argument I bet you could win it!

Now, I don’t think most conservatives would stand for just ignoring the Supreme Court. Certainly, the conservative intelligentsia wouldn’t stand for it. But there’s a sizable percentage of the radicals that are all for it, who really do believe, as Roy Moore and John Lofton do, that if a court ruling conflicts with the Bible – or at least their interpretation of it – then that ruling can and should be ignored. That would prompt a crisis that might well bring down our entire constitutional system, but that’s fine with them. Indeed, I think that’s ultimately their goal. They may claim to be trying to “restore” the Constitution to its “Judeo-Christian roots”, but the truth is that the Constitution is what prevents the theocracy that they truly want and thus it has to go. And I think that’s the ultimate goal of their furious anti-judicial rhetoric.

Comments

  1. #1 Caledonian
    May 12, 2006

    Those people are not ‘conservatives’, no matter what label they have taken for themselves.

    The corruption of language is nearly complete.

  2. #2 Corkscrew
    May 12, 2006

    I note that he seems to think abortion law involves the courts ordering a foetus’s termination, rather than merely permitting it.

  3. #3 wheeler
    May 12, 2006

    gilchrist and his gang came through birmingham this week to protest illegal immigration. it coincided with a klan rally on the same subject. of course, they assured everyone they were motivated by a desire to uphold the rule of law, not animus towards immigrants. so much for that smokescreen.

    among other gems in his speach, gilchrist called morris dees of the southern poverty law center a “disgusting example of humanity,” and then said “Go to the Southern Poverty Law Center Web site and you will meet Satan.”

    these folks are just not rational people.

  4. #4 Dave S.
    May 12, 2006

    Ed writes:

    They may claim to be trying to “restore” the Constitution to its “Judeo-Christian roots”, but the truth is that the Constitution is what prevents the theocracy that they truly want and thus it has to go.

    And once the Constitution is gone (I mean ‘restored’)…do they really need to hold onto the “Judeo-” part?

  5. #5 Roman Werpachowski
    May 12, 2006

    this was right after DeLay called “incredibly outrageous” the fact that Justice Kennedy said that he often did research on the internet – DeLay being too ignorant to know that Westlaw and Lexis, the two primary legal research services, are both on the internet

    He apparently thinks Internet is good only for porn searches.

  6. #6 Capt. Rational
    May 12, 2006

    The frightening part is that the South Dakota abortion ban has pretty much eliminated abortions in that state already, months before the ban goes into effect, and long before the eventual challenge. Not a single doctor in the state is willing to perform abortions, so once a week, a doctor flies in from Minneapolis to offer the procedure. It’s amazing how powerful this mindset is already.

  7. #7 Ken Brown
    May 12, 2006

    Capt. Rational,

    The frightening part is that the South Dakota abortion ban has pretty much eliminated abortions in that state already, months before the ban goes into effect, and long before the eventual challenge.

    Oh yes, that is much more concerning than the fact that, of the 16 women who made the trip to see that doctor, 13 said they were having abortions because they “could not afford the child” or “the mother did not desire to have the child.” Whether the government has any business regulating abortion or not, surely we ought to have more respect for the lives of our children than that!

  8. #8 Roman Werpachowski
    May 12, 2006

    I believe that abortion for economical (“cannot afford”) or whimsical (“do not desire”) should be forbidden. In cases of health danger, sever faetus damage, rape or incest, it should be legal and available.

  9. #9 Ken Brown
    May 12, 2006

    Roman,
    That’s exactly the stance Columbia’s Constitutional Court took two days ago:

    http://www.washingtonpost.com/wp-dyn/content/article/2006/05/11/AR2006051100054.html

  10. #10 Matthew
    May 12, 2006

    Now I have the image of justices surfing myspace for judicial research stuck in my head.

  11. #11 Ed Brayton
    May 12, 2006

    I really have no interest in getting into a debate over whether abortion should or shouldn’t be legal, a debate I avoid like the plague. The point of this post really shouldn’t have anything to do with whether one thinks it should be legal or not.

  12. #12 Roman Werpachowski
    May 12, 2006

    Ken,
    that’s also the legal situation in Poland. The problem is that in many cases where abortion should be legal and performed, mothers have no access to it, for many reasons (pressure from radical Catholics AND corruption in health service).

  13. #13 Roman Werpachowski
    May 12, 2006

    I really have no interest in getting into a debate over whether abortion should or shouldn’t be legal, a debate I avoid like the plague. The point of this post really shouldn’t have anything to do with whether one thinks it should be legal or not.

    Oh, the solution is simple. Start another thread, this has been taken over by evil Abortion Debate Overlords ;-)

  14. #14 Ken Brown
    May 12, 2006

    Eh hmm, sorry Ed! I didn’t mean to hijack the thread.

    More on topic, is it not a state legislature’s right to challenge judicial precedent in this way? Unless they actually do continue to enforce the ban even if/when it gets struck down, I don’t see what’s unconstitutional about the law itself.

    The need for checks and balances goes both ways, does it not? We must not neuter the judiciary by ignoring their rulings, but neither should the legislature be prevented from challenging those rulings when they are perceived to be in error (through the proper channels, of course). Am I missing something?

  15. #15 Ed Brayton
    May 12, 2006

    Ken Brown wrote:

    More on topic, is it not a state legislature’s right to challenge judicial precedent in this way? Unless they actually do continue to enforce the ban even if/when it gets struck down, I don’t see what’s unconstitutional about the law itself.

    No, on that level I really don’t have a problem with it. The makeup of the court itself has changed and they want to retest their stance on abortion. The only way to do that is to pass such a law, knowing it will be immediately challenged in court. It’s no different than the raisin farmer I wrote about who wants to challenge the constitutionality of crop quotas – the only way to do that is to get to court, and the only way to get to court is to violate the law. However, as I’m sure you’ll agree, if the court, as expected even with the new makeup, reaffirms the result in Roe, the state has to back down. They can’t then continue to arrest people for performing abortions. That’s the level of nullification I’m objecting to, and the level I’m afraid we’re headed for.

  16. #16 wheatdogg
    May 12, 2006

    What gets me about these wingnuts is their selective use of American political history. While they wax eloquent about the need to return to the nation’s supposed Christian roots, they are quite willing and able to run roughshod over the very political structure that has, IMHO, enabled this country to exist as it has for more than 200 years. Did they never learn in school about the deliberate decision of the “Founding Fathers” to keep the three branches of government separate and independent? Do they not understand that the tripartite structure of our government has helped prevent our democratic system from slipping away?

    With the executive and legislative branches dominated by one party and one political philosophy, an independent judiciary is a necessary check on the other two branches’ potential excesses. Were the Democrats in the White House and Congress, these turkeys would be insisting that judges have more power than they do now to forestall a “liberal” agenda. They only see as far as their own noses.

    These wingnuts are the real Fifth Columnists. They are the ones that should be tried for treason.

  17. #17 Dave M.
    May 12, 2006

    Satan lives among us, and his name is … Morris Dees? I did not know that. Of course, “Dees” spelled backwards is “seed”, and Morris was a famous finicky cat, and Satan has cat-eyes, right? So, MD = backward seed of cat-eyed one? Makes you think, doesn’t it. (Okay, maybe not.)

  18. #18 tacitus
    May 13, 2006

    Here’s a question for you legal eagles. Many anti-abortion activists equate the act of abortion to the act of murder, but very few of those same activists would punish the woman with jail time let alone the death penalty.

    So if Roe v Wade is overturned we could see the spectacle of the abortionist getting heavy jail time while the woman seeking the abortion, paying for the abortion, and having the abortion gets a free pass.

    Would a law that has such lop-sided punishments run into trouble with the Constitution or anything else?

  19. #19 Pieter B
    May 14, 2006

    I once heard an interview with Marilyn Quayle, in which she opined that the woman should not be prosecuted because she “submits to the abortionist.” Oy.