More Conservatives Defending the Judiciary

It's nice to see some of the more decent and consistent conservatives going after Tom DeLay, James Dobson and the rest of the folks going after judges with a meat cleaver. The latest to do so are Ted Olson and Charles Krauthammer. Olson represented President Bush before the Supreme Court in the election case in 2000 and then served as his Solicitor General when he took office. He is also thought to be on the short list of candidates for a future Supreme Court nomination. Writing in the Wall Street Journal, he said:

It is time to take a deep breath, step back, and inject a little perspective into the recent heated rhetoric about judges and the courts. We might start by getting a firm grip on the reality that our independent judiciary is the most respected branch of our government, and the envy of the world...

Calls to investigate judges who have made unpopular decisions are particularly misguided, and if actually pursued, would undermine the independence that is vital to the integrity of judicial systems. If a judge’s decisions are corrupt or tainted, there are lawful recourses (prosecution or impeachment); but congressional interrogations of life-tenured judges, presumably under oath, as to why a particular decision was rendered, would constitute interference with – and intimidation of – the judicial process. And there is no logical stopping point once this power is exercised.

Krauthammer's column in the Washington Post criticizes DeLay both for his threats and his views in the Schiavo case. He refers to the "flailing, sometimes delirious attacks on the judiciary mounted by House Majority Leader Tom DeLay and others in the wake of the Terri Schiavo case."

DeLay is threatening judges involved in that case with unspecified retribution. He said that Supreme Court Justice Anthony Kennedy should be held "accountable" for using international law in deciding a recent (death penalty) case. He wants congressional hearings to reinterpret the "good behavior" clause of lifetime judicial tenure to make good behavior mean not what it has meant for two centuries -- honesty and propriety -- but good constitutional behavior. Do we really want Congress deciding that?

DeLay is wrong about the Schiavo case. I think the law was a bad law, but the trial judge applied it properly. I think the judge assessed the medical evidence incorrectly, but that is a matter of interpretation, not of judicial impropriety or denial of due process. There is nothing here with which to threaten this judge or the judicial system.

But at least DeLay was coherent. Sen. John Cornyn (R-Tex.) wandered somewhere off the Pacific Coast Highway when, on the Senate floor, he suggested a connection between "some recent episodes of courthouse violence" and judicial activism -- as if courtroom gunmen are disappointed scholars who kill in the name of Borkian originalism. Even worse was a Washington meeting of over-the-top activists led by Phyllis Schlafly that issued a manifesto for the restoration of God to our constitutional system.

Let us have a bit of sanity here. One of the glories of American democracy is the independence of the judiciary. The deference and reverence it enjoys are priceless assets. The Supreme Court is the only institution that could have ended the Bush-Gore fiasco of 2000 with the immediacy, finality and, yes, legitimacy that it did. (True, liberals, who for half a century employed judicial fiat to enact their political agenda, have been whining for five years about this particular judicial exercise. But the critical point is that, whine or not, the ruling was accepted as law.) Moreover, and more generally, judicial independence and supremacy are necessary checks on the tyranny of popular majorities.

He goes on to list some of the rulings he disagrees with and he makes pointed criticisms of them. But that is all the more important in this situation because it points out that one can criticize judges - I often do so myself - without attempting to break down the separation of powers so crucial to our constitutional system. Judges are not immune to criticism. But to be taken seriously, two things are needed. First, the criticisms must be valid and warranted. In the case of the right's relentless attacks on Judge Greer, they are as unjustifed as Harry Reid's equally "flailing, sometimes delirious" attacks on Clarence Thomas. And it cannot cross the line into attempts to intrude on the court's authority and punish judges for making decisions one doesn't like.