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?