Marci Hamilton on the Right's War on the Judiciary

Marci Hamilton's latest column skewers Tom DeLay and Bill Frist for their cavalier and hypocritical demonization of the courts. She writes in part:

DeLay catered to the far right when he led the charge to enact "Terri's Law," which enabled her parents to return to a federal court that had lacked jurisdiction to hear their case. (DeLay is as cynical as he is catering, however: An earlier version of the bill would have given the parents new rights, not just a forum. But DeLay and other Republicans compromised and agreed to remove those new rights from the bill in order to get it passed.)

Ironically but all too predictably, after entrusting the case to the federal courts, DeLay then turned on them. The courts had rightly found there was no existing constitutional ground raised by the Schindlers, Terri's parents, that would permit them to overturn the state court decision. In response, DeLay claimed this modest, lawful, and prudent call was "activist," and threatened that the courts would have to one day "answer for their behavior."

After some cooler head reminded him that he was directly threatening the political independence of the judiciary -- one of the pillars of the American constitutional system -- DeLay retracted these particular words, but hardly abandoned the message. Indeed, his new remarks were if anything, even more threatening: "We've got jurisdiction over the courts. We set up the courts, and we can unseat the courts." And just in case no one understood that he was threatening the courts, this Tuesday, DeLay pledged to investigate whether federal judges have complied with the Constitution's "good behavior" requirement in coming to the decisions they have reached.

This last threat, of course, is a joke of the highest order. Neither he nor any other member of Congress can unseat a sitting judge simply because he disagrees with the decisions reached. The cooler head recently mentioned needs to sit down with Mr. DeLay and engage in an elementary, maybe even remedial, course on the separation of powers.

In any event, the charge of "activism" couldn't have been farther from the mark. The federal courts - like every court from the beginning of the long litigation -- reached a conclusion based directly on the law: Florida law permits oral statements to be taken into account in these circumstances, so that Michael's testimony regarding his wife's intentions was both admissible and probative.

Far from being activist, then, the Schiavo decisions resolutely have followed the rule of law - even while all around urged the judges who issued them to follow, instead, their own religious and political beliefs.

Admirably, the judges did not see fit to bring their religious or political leanings into their decisions. That's because their job is to apply the law, not legislate it.

In the end, the Schindlers' problem was with Florida law, not with the courts. To demonize the courts now -- as DeLay is doing -- is nothing other than a shell game of political accountability.

In other words, these are the actions of a demagogue. He's not the least bit interested in the Constitution or the rule of law, he's interested in scoring points with his constituency. But even that is backfiring on him with the public being strongly opposed to his position on the Schiavo case.

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It'd be nice if there was a good behavior rule for majority leaders as well.

Artcle I, section 3 grants Congress the powers of impeachment.

And Section 4 aloows them to punish fellow members:

"Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member."

"Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member."

So in other words, when all the other demagogues determine that the "Elvis moment" has arrived, i.e. that there are lots of political points to be scored with their constituents by pouncing on DeLay, then it's bye bye time for the "Tommers", that big ol' galoot.

I am far from being a fan of Gingrich, but it was decent of him to step down in order to prevent further dishonor to his constitutents.

DeLay should follow suit... resign, let a neocon emperor pay his fines, and then shut up!

I do not understand the "Elvis moment" comment. I have never heard this. Is it a common expression, and what does it mean exactly? (I understand the rest of your comment, just not how Elvis fits in). Thanks.

By GeneralZod (not verified) on 21 Apr 2005 #permalink

I do not understand the "Elvis moment" comment.

I guess it's like an Elvis year, except that it's compressed down into a smaller time frame.

"When all the other demagogues determine that the 'time is ripe.'"

Thanks, 386. So its kind of like "jumping the shark"?

By GeneralZod (not verified) on 21 Apr 2005 #permalink

In the end, the Schindlers' problem was with Florida law, not with the courts.

Actually, the Schindlers' problem was with FL law as applied by FL state judges.

It's interesting that FL state judges are elected. You haven't heard the Republicans bitching and moaning about "unelected judges" in the Schiavo case, have you?

Thanks, 386. So its kind of like "jumping the shark"?

I think that if they should happen to give Mr. DeLay the boot, it would likely be more a case of all the other demagogues' not being too keen on the idea of one lone demagogue making all the other demagogues and their demagoguery look bad.